STATE OF NORTH CAROLINA
STATE OF NORTH CAROLINA
COUNTY OF RICHMOND
GEARY MICHAEL CHLEBUS,
Petitioner,
v.
N.C. CRIMINAL JUSTICE
EDUCATION AND TRAINING
STANDARDS COMMISSION,
Respondent.
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IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
11 DOJ 4829
PROPOSAL FOR DECISION
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This case came on for hearing on October 12, 2011, January 11 and January 12, 2012, before Administrative Law Judge Joe Webster 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: Geary Chlebus, pro se
Respondent: Catherine F. Jordan
Lauren D. Tally
Assistant Attorneys General
Law Enforcement Liaison Section
North Carolina Department of Justice
P.O. Box 629
Raleigh, N.C. 27602-0629
Attorneys for Respondent
ISSUE
Does substantial evidence exist to support the Probable Cause Committee’s decision to revoke Petitioner’s school director certification, Petitioner’s generalized and specialized instructor certifications, and Petitioner’s law enforcement officer certification?
EXHIBITS
For Respondent: 1-8; 10-16, 19-28
RULES
School Director Certification Rules
12 NCAC 09B .0203(a)
12 NCAC 09B .0203(f)
12 NCAC 09B .0203(g)
12 NCAC 09B .0203(h)
12 NCAC 09B .0202(a)(3)
12 NCAC 09B .0205(c)
12 NCAC 09B .0202(a)(4)
12 NCAC 09B .0202(a)(5)
12 NCAC 09B .0202(a)(6)
12 NCAC 09B .0202(a)(9)
12 NCAC 09B .0202(b)(1)
12 NCAC 09B .0201(f)
12 NCAC 09B .0202(a)(10)
12 NCAC 09B .0404(c)
12 NCAC 09B .0202(b)(3)
12 NCAC 09B .0304(b)
12 NCAC 09B .0202(b)(4)
12 NCAC 09B .0202(a)(7)(B)
12 NCAC 09B .0202(b)(7)(B)
12 NCAC 09B .0202(b)(8)
12 NCAC 09B .0202(b)(9)(A)
12 NCAC 09B .0404(a)
12 NCAC 09B .0404(b)
12 NCAC 09B .0405(b)(1)
12 NCAC 09B .0405(b)
12 NCAC 09B .0502(b)(2)
12 NCAC 09B .0502(b)(3)
Instructor Certification Rules
12 NCAC 09A .0203(5)
12 NCAC 09B .0301(f)(5)
12 NCAC 09B .0301(a)
12 NCAC 09B .0301(f)(8)
Law Enforcement Certification Rules
12 NCAC 09A .0204(b)(6)
12 NCAC 09A .0205(b)(4)
12 NCAC 09A .0204(b)(8)
12 NCAC 09B .0205(b)(5)
12 NCAC 09A .0204(b)(2)
12 NCAC 09B .0101(3)
12 NCAC 09A .0204(c)
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 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 Proposed Suspension/Revocation of School Director Certification, Proposed Suspension/Revocation of General and Specialized Instructor Certification, and Proposed Denial of Law Enforcement Officer Certification through a letter mailed by Respondent on March 7, 2011. (Respondent’s Exhibit 26)
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 and Chapter 9B, to certify school directors, general and specialized instructors, and law enforcement officers and to revoke, suspend, or deny such certification.
SCHOOL DIRECTOR CERTIFICATION
3. 12 NCAC 09B. 0202, entitled Responsibilities of the School Director states, in pertinent part, that:
(a) In planning, developing, coordinating, and delivering each Commission-certified criminal justice training course, the School Director shall:
. . . .
(3) Provide each instructor with a current Commission course outline and all necessary additional information concerning the instructor’s duties and responsibilities;
(4) Notify each instructor that they must comply with the Basic Law Enforcement Course Management Guide and provide them access to the most current version of the Course Management Guide;
(5) Review each instructor’s lesson plans and other instructional materials for conformance to Commission standards and to minimize repetition and duplication of subject matter;
(6) Arrange for the timely availability of appropriate audiovisual aids and materials, publications, facilities, and equipment for training in all topic areas;
(7) Develop, adopt, reproduce, and distribute any supplemental rules, regulations, and requirements determined by the school to be necessary or appropriate for:
. . . .
(B) establishing responsibilities and obligations of agencies or departments employing or sponsoring course trainees; and
. . . .
(9) Administer the course delivery in accordance with Commission procedures and standards, give consideration to advisory guidelines issued by the Commission, and ensure that the training offered is safe and effective;
(10) Maintain direct supervision, direction, and control over the performance of all persons to whom any portion of the planning, development, presentation, or administration of a course has been delegated; and
(b) In addition to Paragraph (a) of this Rule, in planning developing, coordinating and delivering each Commission-certified Basic Law Enforcement Training Course, the School Director shall:
(1) Deliver training in accordance with the most current version of the Basic Law Enforcement Training Course Management Guide as published by the North Carolina Justice Academy;
. . . .
(3) Schedule only those instructors certified by the Commission to teach those high liability areas as specified in 12 NCAC 09B .0304(a) as either the lead instructor or in any other capacity;
(4) With the exception of the First Responder, Physical Fitness, Electrical and Hazardous Materials, and topical areas as outlined in 12 NCAC 09B .0304(a) of this Subchapter, schedule one specialized certified instructor certified by the Commission for each six trainees while actively engaged in a practical performance exercise;
. . . .
(7) Not less than 15 days before commencing delivery of the Basic Law Enforcement Training Course, submit to the Commission a Pre-Delivery Report of Training Course Presentation as set out in 12 NCAC 09C .0211 along with the following attachments:
. . . .
(B) a copy of any rules, regulations, and requirements for the school. A copy of such rules shall also be given to each trainee and to the executive officer of each trainee’s employing or sponsoring agency or department at the time the trainee enrolls in the course;
(9) Administer or designate a staff person to administer appropriate tests as determined necessary at various intervals during course delivery:
. . . .
(A) to determine and record the level of trainee comprehension and retention of instructional subject- matter[.]
4. 12 NCAC 09B .0203, entitled Admission of Trainees, states, in pertinent part, that:
(a) The school director shall not admit any individual as a trainee in a presentation of the Basic Law Enforcement Training Course who is not a citizen of the United States.
. . . .
(f) The school shall not admit any individual as a trainee in a presentation of the Basic Law Enforcement Training Course unless as a prerequisite the individual has provided to the School Director a medical examination report, completed by a physician licensed to practice medicine in North Carolina, a physician’s assistant, or a nurse practitioner, to determine the individual’s fitness to perform the essential job functions of a criminal justice officer. The Director of the Standards Division shall grant an exception to this standard for a period of time not to exceed the commencement of the physical fitness topical area when failure to timely receive the medical examination report is not due to neglect on the part of the trainee.
(g) The school shall not admit any individual as a trainee in a presentation of the Basic Law Enforcement Training Course unless as a prerequisite the individual is a high school graduate or has passed the General Educational Development Test indicating high school equivalency. High school diplomas earned through correspondence enrollment are not recognized toward the educational requirements.
(h) The school shall not admit any individual trainee in a presentation of the Basic Law Enforcement Training Course unless as a prerequisite the individual has provided the certified School Director a certified criminal record check for local and state records for the time period since the trainee has become an adult and from all locations where the trainee has resided since becoming an adult. An Administrative Office of the Courts criminal record check or a comparable out-of-state criminal record check will satisfy this requirement.
5. 12 NCAC 09B .0201(f) entitled Administration of Criminal Justice Schools, states, in pertinent part, that: Each institution or agency accredited to deliver basic recruit training shall ensure that supplies and equipment for trainees are utilized during course delivery as specified in the Basic Law Enforcement Training Course Management Guide as referenced in 12 NCAC 09B .0205(d).
6. 12 NCAC 09B .0202 entitled Responsibilities of the School Director states, in pertinent part, that:
(b) In addition to Paragraph (a) of this Rule, in planning developing, coordinating and delivering each Commission-certified Basic Law Enforcement Training Course, the School Director shall:
(8) Monitor, or designate an instructor certified by the Commission to monitor, the presentations of all instructors once during each three year certification period in each topic taught by the instructor and prepare written evaluations on their performance and suitability for subsequent instructional assignments. The observations shall be of sufficient duration to ensure the instructor is using the Instructional System Design model, and that the delivery is objective based, documented by and consistent with a Commission-approved lesson plan. For each topic area, the School Director’s evaluation shall be based upon the course delivery observations, the instructor’s use of the approved lesson plan, and the results of the student evaluation of the instructor. For probationary instructors, these evaluations shall be prepared on Commission forms and forwarded to the Commission. Based on this evaluation, the School Director shall recommend approval or denial of requests for General Instructor Certification. For all other instructors, these evaluations shall be prepared on Commission forms in accordance with Commission standards as set out in this Chapter. These evaluations shall be kept on file by the school for a period of three years and shall be made available for inspection by a representative of the Commission upon request. In the event the evaluation of an instructor indicates that his or her performance was less than acceptable, the School Director shall forward a copy of the evaluation to the Commission. Any designated instructor certified by the Commission who is evaluating the instructional presentation of another instructor shall hold certification in the same instructional topic area as that for which the instructor is being evaluated[.]
7. 12 NCAC 09B .0304 entitled Specialized Instructor Certification states, in pertinent part, that: (b) To qualify for and maintain any Specialized Instructor Certification, an applicant must possess a valid CPR Certification that included cognitive and skills testing, through an organization whose curriculum meets the national standards set forth by the International Guidelines Conference on Cardiopulmonary Resuscitation and Emergency Cardiovascular Care.
8. 12 NCAC 09B .0404 entitled Trainee attendance states, in pertinent part, that:
(a) Each trainee enrolled in a certified Basic Law Enforcement Training Course shall attend all class sessions. The school director shall monitor the trainee’s regular attendance at criminal justice training courses in which the trainee is enrolled.
(b) The school director may excuse a trainee from attendance at specific class sessions. However, in no case may excused absences exceed five percent of the total class hours for the course offering. A trainee shall not be eligible for administration of the state comprehensive examination and shall be dismissed from the course if the cumulative total of class absences exceeds five percent regardless of the prior completion of make-up work.
(c) If the school director grants an excused absence from a class session, he shall schedule make-up work and ensure the satisfactory completion of such work during the current course presentation. The school director shall schedule instructors and reimburse those instructors for the purpose of completion of the make up work. Absences which occur during the last forty hours of the training course may be made up in a subsequent delivery; however, the school director shall notify the Standards Division prior to scheduling the make up work.
9. 12 NCAC 09B .0405 entitled Completion of Basic Law Enforcement Training Course states, in pertinent part, that:
(b) The trainee shall demonstrate proficiency in the school’s cognitive topical area tests by achieving a minimum score of 70 percent on each topical area test and shall also demonstrate proficiency in the motor skills and performance subjects:
(1) a trainee who fails to achieve a passing score on the first attempt shall have one opportunity for reexamination following remediation;
10. 12 NCAC 09B .0502 entitled Terms and Conditions of School Director Certification states, in pertinent part, that:
(b) To retain certification as a school director, the school director shall:
. . . .
(2) Maintain and comply with the current version of the Basic Law Enforcement Training Course Management Guide;
(3) Maintain and ensure compliance with the current version of the Basic Law Enforcement Training Instructor Notebook assigned to each certified school[.]
11. 12 NCAC 09B .0205 entitled Basic Law Enforcement Training states, in pertinent part, that:
(c) The Basic Law Enforcement Training Manual, as published by the North Carolina Justice Academy, shall be used as the basic curriculum for this basic training course for law enforcement officers as administered by the Commission. Copies of this publication may be inspected at the office of the agency:
Criminal Justice Standards Division
North Carolina Department of Justice
114 West Edenton Street
Old Education Building
Post Office Drawer 149
Raleigh, North Carolina 27602
and may be obtained from the Academy at the following address:
North Carolina Justice Academy
Post Office Drawer 99
Salemburg, North Carolina 28385
12. James Sprunt Community College (hereinafter JSCC is located in Kenansville, North Carolina. JSCC has a Basic Law Enforcement Training Course (hereinafter BLET). In the summer of 2009, JSCC had a day BLET program starting in July 2009 and the night BLET program starting in August 2009.
13. Petitioner was the BLET school director at JSCC from July 1999 until November 18, 2009 when JSCC submitted paperwork to Respondent removing Petitioner from that capacity.
14. Petitioner is certified by Respondent as a BLET school director, a general instructor, a specialized instructor, and as a law enforcement officer.
15. W. Alex Setzer (hereinafter Setzer) is a retired Captain from the New Bern Police Department. He spent 30 years as an active law enforcement officer and currently works for Respondent as the eastern field representative.
16. On November 20, 2009, Respondent received a complaint regarding JSCC’s administration of the BLET program. Setzer testified that he went to JSCC to investigate the complaint. He initially interviewed a few students and staff members to discuss possible irregularities in BLET program. In December 2009, based on these interviews, Respondent sent a letter to the JSCC BLET day class letting them know Respondent would not administer their final comprehensive exam because of deficiencies in the course. The night BLET class was eventually suspended as well.
17. Setzer conducted a full audit of the BLET program in early January 2010. He was the lead investigator but was assisted by Respondent: Richard Squires, Marvin Clark, Bob Beck, and Mark Dearry. Respondent audited the student and instructor files, equipment, facilities, videos and texts. Setzer found many deficiencies in the student and instructor files. He also found the equipment, facilities, videos and texts to be not in accordance with the North Carolina Administrative Code requirements for BLET courses.
18. Setzer drafted a probable cause memo based on Respondent’s investigation and interviews. (Respondent’s exhibit 26) This memo was presented to the probable cause committee where they found probable cause on 26 allegations and suspended Petitioners school director certification, instructor certification, specialized instructor certification, and law enforcement certification.
19. Setzer testified that he had never seen this many deficiencies at a BLET program.
20. Petitioner’s school director certification was suspended for a period of not less than 5 years, his instructor certification was suspended for a period of not less than 5 years, and his law enforcement certification suspended for a period of not less than 5 years for material misrepresentation and indefinitely for lack of good moral character.
21. Jeffery Myers (hereinafter Myers) has been employed at JSCC for over 11 years. He supervised Petitioner for 5 years while Petitioner was the school director for the BLET program. Myers testified at the hearing that Brad Coats (hereinafter Coats) was brought on to assist Petitioner since there was both a day and night BLET program running. Petitioner was the school director and Coats was there to assist in any way needed.
22. Myers testified that in April 2009, a student named William Holland filed a grievance against the college about a disability and how he was treated by Petitioner while he was a BLET student at JSCC. The president of JSCC decided that Petitioner would not teach any classes Mr. Holland was involved in. Mr. Holland reapplied to the Fall 2009 BLET program at JSCC and was admitted into the day program.
23. Myers testified that Petitioner was the BLET School Director for both the day and night programs beginning in late summer 2009 but no longer was available to teach during the day. Petitioner’s sole role with the day program was oversight and administration as school director. Petitioner had an clerical assistant for up to 25 hours a week to help him with paperwork and files.
24. Myers testified that Petitioner placed budget requests in the spring of each year. Myers asked Petitioner for a list of all required equipment to make sure the college had everything it needed to run a BLET program but never received the list from Petitioner. Myers testified that if he knew a piece of equipment was required for the program he would have made sure the BLET program received it. Petitioner was in charge of the vehicles, making sure they were inspected, and had operational PA systems for the BLET program.
25. Myers testified that in Fall 2009, he observed Petitioner teaching the day class even though Petitioner had already been told not to teach the day course. Petitioner also had contact with William Holland when he had been ordered not to have any contact with that student. Myers testified that, in November 2009, there were complaints from many students about the driving portion of their BLET. The student complaints ranged from there not being enough instructors, to the driving track not being available, to there being no remediation for students who failed. In November 2009, Myers observed the driving course and saw there was no remediation given on the driving track when students did not pass. When Petitioner refused to give remediation, Myers contacted Respondent through Mark Dearry. Respondent then initiated their investigation. A week later Petitioner was removed from his position as School Director, and Respondent received a letter to notify Respondent that JSCC had removed Petitioner from the position of School Director.
26. Mark Dearry testified at the hearing. Dearry is the training systems manager with the Criminal Justice Standards with North Carolina Department of Justice. He testified that he is responsible for accreditation and certification of schools that deliver the Criminal Justice Commission courses throughout the state. He oversees instructors assigned to deliver BLET and the schools accredited to deliver BLET. He testified that the Course Management Guide (hereinafter CMG) is a set of guidelines that explain in detail the rules and regulations that the Commission lays out in the North Carolina Administrative Code. The CMG assists the school director assigned to deliver the course by setting forth the roles of the school director, and the testing, curriculum, and equipment necessary. The CMG is updated twice per year and is provided to the community colleges and the school director when the Justice Academy sends a letter. The CMG is also available online. Dearry testified that the facilities and the equipment should be available prior to delivery of the BLET course, and if it is not available, then the school director should not run the course and should contact Criminal Justice Standards to identify the issues or problems. The school director is charged with the responsibility of ensuring that the instructors can deliver the course.
27. Dearry testified that the audit of JSCC in 2009 found various deficiencies. The delivery of instruction, the equipment, and the testing was deficient. Until Petitioner’s removal from the position of School Director, Petitioner was the only School Director for the BLET program at JSCC.
28. Dearry testified that JSCC was audited previously in 2005, and that he spoke with Petitioner in 2005, and that it took several months to correct deficiencies. In the previous audit, Petitioner was able to correct deficiencies. Some of the deficiencies from the previous audit were similar to this current audit.
29. Brad Coats (hereinafter Coats), instructor coordinator for JSCC, testified at the hearing. In 2009 he was a part time instructor for the BLET program. He taught classes as they were assigned by Petitioner. Coats is a specialized instructor in driving, firearms, and rapid deployment. Coats’s role was to help with the day BLET class at JSCC, but Petitioner was still the school director and had ultimate control over the program.
30. Coats testified that Petitioner did not go over or look at his lesson plans. Petitioner did not provide him with an instructor manual or the BLET CMG. Coats did not even know what a CMG was until the audit by Respondent.
31. Coats testified that not all the equipment necessary for the firearms course was available. The skeet thrower was inoperable in November 2009 when he taught firearms. Coats also testified that during his teaching he did not have all of the videos that he needed for one of the courses. He attempted to locate one but was not able to.
32. Coats testified that while Petitioner was not allowed to instruct during the day course, Petitioner was still the school director and administrator over the BLET program. Coats reported directly to Petitioner. Petitioner made the schedule and adapted to any schedule changes. Coats testified that while under Petitioner’s direction in 2009, he provided no remedial training for students who failed tests during their BLET training.
33. Prior to the audit, Coats collected all the BLET material from of every storage room, classroom and office for Respondent to complete the audit. He already knew some videos, radios and the skeet thrower were missing from his time when he was an instructor.
34. Coats is currently employed by JSCC and will be the new school director for their BLET program if and when it returns.
35. Anthony Pate (hereinafter Pate) testified at the hearing. Pate was a BLET student in the night class at JSCC in the fall 2009. Pate testified that Petitioner was the school director at that time. During Respondent’s investigation, Pate was interviewed by staff members. (Respondent’s Exhibit 14) Pate testified Petitioner instructed him in some courses throughout the night BLET program. When Petitioner administered the tests for those courses, Petitioner would walk around during the test, go up to individual students desks, look at their answers, and while the test was still happening point out the correct answers for students. Pate testified that, during testing, Petitioner pointed to an incorrect answer and say No, and read another answer and say yes, or he pointed to the correct answer and say nothing, indicating that answer was the correct answer. Pate testified that Petitioner did this for 2 to 3 questions. This was done for an end of block test that was provided by Respondent.
36. Christopher Egge (hereinafter Egge was a fall 2009 day BLET student at JSCC and he testified at the hearing that he was interviewed by Respondent’s staff. (Respondent’s Exhibit 11) The last two pages of Respondent’s Exhibit 11 was drafted by Egge summarizing his complaints about the BLET program at JSCC. Egge testified that the first time his class was scheduled to go to the firing range it was double booked. The range had been previously reserved for use by the Department of Corrections and had not been reserved for the BLET program. Because of this conflict, the whole schedule had to be rearranged. Egge testified that the driving course vehicles were very old and the tires were balding. The track had loose gravel all over it and it was very difficult to maintain control over the vehicles while driving on this track. There were two newer vehicles but Egge testified that Petitioner would not allow the day class to use the newer vehicles. Egge testified that during the driving course, there were only two instructors for 14 students.
37. Egge testified that there were no radios available for the instruction on radio procedures. Therefore the students did not have any practical experience with radios. The physical fitness instructor was Gary Sessoms. Sessoms was not present approximately one-quarter of the scheduled class times. When Sessoms was absent, no substitute instructor was present, and the students on their own attempted to run a physical training course. Egge testified that the day class and night class interacted a lot at first, but later when Petitioner was instructing the night class, the night class was told not to speak to the day class.
38. Egge testified that after the rapid deployment course was taught and completed, the students learned they needed to repeat the whole course because the trainer for the first course was not certified to teach the course. That repeat resulted in an additional 20 hours of instruction.
39. Egge testified that the criminal elements course had a lot of material in it and some students failed. Those who failed were allowed to attend Petitioners night class criminal elements course and take the final test with the night class. If the day student failed, he/she would have her original failing grade erased and the passing grade from the night course put in its place as if the failing grade never happened
40. Egge testified that there was a storage closet that only Petitioner had the key to, which had some supplies and cleaning material. This closet was locked for most of the day and only open during the night class BLET course. Egge missed a half a day of the Motor Vehicle Law course because of a military commitment. Petitioner told Egge that he could make up his time by doing a ride along with a Sampson County Deputy. Egge rode with Deputy Long, who is not a certified instructor.
41. Petitioner did not testify or present evidence at the hearing.
Allegation 1: Petitioner failed to verify compliance with admissions standards
42. 12 NCAC 09B .0203(a) requires that, The school director shall not admit any individual as a trainee in a presentation of the Basic Law Enforcement Training Course who is not a citizen of the United States. The following evidence was presented to support this rule violation:
A. Setzer testified that during his audit of the JSCC BLET student files program, Respondent’s staff discovered that two (2) student’s files (William Tripp and Jessica Koonce) did not contain proof of citizenship. Therefore, under the above rule, these students should not have been enrolled until US citizenship was verified by the School Director.
43. 12 NCAC 09B .0203(f) requires that, The school shall not admit any individual as a trainee in a presentation of the Basic Law Enforcement Training Course unless as a prerequisite the individual has provided to the School Director a medical examination report, completed by a physician licensed to practice medicine in North Carolina, a physician’s assistant, or a nurse practitioner, to determine the individual’s fitness to perform the essential job functions of a criminal justice officer. The Director of the Standards Division shall grant an exception to this standard for a period of time not to exceed the commencement of the physical fitness topical area when failure to timely receive the medical examination report is not due to neglect on the part of the trainee. The following evidence was presented to support this rule violation:
A. Setzer testified that during an audit of files, Respondent discovered that the medical examination reports for six (6) students (William Jackson, Justin Gray, Ollen Raynor, Michael Turner, Casey Wiley, and Johnny Loveless) contained insufficient information to determine if the examining physician, physician’s assistant or nurse practitioner were licensed to practice medicine in North Carolina. Jackson’s Medical Examination Report did not include the fourth and final page containing the signature of the examining physician, physician’s assistant or nurse practitioner. Loveless’s Medical Examination Report did not include the signature of the examining physician, physician’s assistant or nurse practitioner.
B. The Medical Examination Report for Gray, Raynor, Turner, and Wiley did not include a legible signature or stamp of the examining physician, physician’s assistant, or nurse practitioner.
44. 12 NCAC 09B .0203(g) requires that, The school shall not admit any individual as a trainee in a presentation of the Basic Law Enforcement Training Course unless as a prerequisite the individual is a high school graduate or has passed the General Educational Development Test indicating high school equivalency. High school diplomas earned through correspondence enrollment are not recognized toward the educational requirements. The following evidence was presented to support this rule violation:
A. Setzer testified that during an audit of files, Respondent discovered that the files of two (2) students (Steven Pittman and Christopher Egge) did not contain a high school diploma or General Educational Development (GED) Test indicating high school equivalency from a recognized school or college.
B. Pittman’s file contained an educational transcript; however, it did not state if the student was a high school graduate or had passed the General Educational Development Test indicating high school equivalency.
C. Egge’s file contained a high school diploma from the First Baptist Church/School in Long Beach, CA. This is a private school and is not recognized by the Western Association of Schools and Colleges or the California Department of Education.
D. Under the previously noted rule, neither Pittman or Egge should have been admitted to the BLET until high school graduation, GED attainment or verification of school was completed by the School Director. This was not done.
45. 12 NCAC 09B .0203(h) requires that, The school shall not admit any individual trainee in a presentation of the Basic Law Enforcement Training Course unless as a prerequisite the individual has provided the certified School Director a certified criminal record check for local and state records for the time period since the trainee has become an adult and from all locations where the trainee has resided since becoming an adult. An Administrative Office of the Courts criminal record check or a comparable out-of-state criminal record check will satisfy this requirement. The following evidence was presented to support this rule violation:
A. Setzer testified that during an audit of files, Respondent discovered that the JSCC application form requests only the student’s current address and last out of state address. The lack of adequate addresses prohibits Respondent from verifying if any of the 38 student files contained certified criminal records checks for local and state records for the time period since the trainee has become an adult and from all locations where the trainee has resided since becoming an adult.
46. Petitioner presented no evidence to the contrary at the hearing.
Allegation 2: Petitioner failed to provide instructors with BLET Course Outline
47. 12 NCAC 09B .0202(a)(3) requires that, In planning, developing, coordinating, and delivering each Commission-certified criminal justice training course, the School Director shall provide each instructor with a current Commission course outline and all necessary additional information concerning the instructor’s duties and responsibilities.
48. 12 NCAC 09B .0205(c) requires that, The Basic Law Enforcement Training Manual as published by the North Carolina Justice Academy shall be used as the basic curriculum for this basic training course for law enforcement officers as administered by the Commission. The following evidence was presented to support this rule violation:
A. Setzer testified that during an interview of Petitioner, Petitioner stated that he provided a new syllabus to the instructors most of the time unless they were teaching for another community college. Setzer testified that if the instructor was teaching for another community college, Petitioner did not provide a syllabus or BLET outline.
B. Setzer testified that section VI, C of the Basic Law Enforcement Course Management Guide (hereinafter CMG) states in part, Accredited schools must maintain and issue the most current lesson copies of the Basic Law Enforcement Training curriculum. It is the school director’s responsibility to possess and distribute to instructors current copies of each lesson plan and secure and/or own all other required materials to be used as called for in each lesson. (Respondent’s Exhibit 28)
C. Petitioner was the School Director of record until November 18, 2009. Although Petitioner was restricted from being present in the classroom during the day class, Petitioner was still responsible for administrative oversight of the program.
D. David West testified at the hearing. West is employed with the Onslow County Sheriff’s Office as a deputy sheriff. He possesses a general, drivers, and firearms instructors’ certificate with the Commission. (Respondent’s Exhibit 5) He testified that he was an instructor at James Sprunt Community College in 2008 and 2009. See id. West testified that he instructed the Driving block of instruction during the day time delivery of the BLET course. He testified that Petitioner did not give him a lesson plan or a course outline. He testified that he did not prepare an outline, but he had a course lay out on how the driving course was supposed to be built. He testified that he did not meet with Petitioner prior to instructing the Law Enforcement Driver Training Block of Instruction. (Respondent’s Exhibit 5)
49. Petitioner presented no evidence to the contrary at the hearing.
Allegation 3: Petitioner failed to notify instructors to comply with the BLET Course Management Guide
50. 12 NCAC 09B .0202(a)(4) requires that, In planning, developing, coordinating, and delivering each Commission-certified criminal justice training course, the School Director shall notify each instructor that they must comply with the Basic Law Enforcement Course Management Guide and provide them access to the most current version of the Course Management Guide. The following evidence was presented to support this rule violation:
A. Setzer testified that during interviews, Respondent was informed by Brad Coats, an instructor and qualified assistant, that he was not familiar with the CMG. Petitioner did not notify him that he must comply with it, and he was not provided access to the CMG.
B. Brad Coats testified at the hearing that Petitioner never showed him a BLET Course Management Guide. Coats said in fact he had never seen or knew anything about a BLET Course Management Guide until Respondent produced one during their interview of him.
51. Petitioner presented no evidence to the contrary at the hearing.
Allegation 4: Petitioner failed to review instructor’s lesson plans
52. 12 NCAC 09B .0202(a)(5) requires that, In planning, developing, coordinating, and delivering each Commission-certified criminal justice training course, the School Director shall review each instructor’s lesson plans and other instructional materials for conformance to Commission standards and to minimize repetition and duplication of subject matter. The following evidence was presented to support this rule violation:
A. Setzer testified that during an interview of Petitioner, Petitioner stated that he did not verify that the instructors’ lesson plans were correct, and that some instructors provided their own PowerPoint presentation but Petitioner did not confirm that those presentations were current.
B. Brad Coats testified at the hearing that the BLET instructor manual was somewhat up to date. It was missing some blocks of instruction or had older versions. Coats also stated that Petitioner did not review lesson plans with him as required in the above rule.
C. West testified that Petitioner did not review his lesson plans prior to teaching the Law Enforcement Driver Training block of instruction. (Respondent’s Exhibit 5)
53. Petitioner presented no evidence to the contrary at the hearing.
Allegation 5: Petitioner failed to provide audiovisual aids & materials, text, facilities, and equipment
54. 12 NCAC 09B .0202(a)(6) requires that, In planning, developing, coordinating, and delivering each Commission-certified criminal justice training course, the School Director shall arrange for the timely availability of appropriate audiovisual aids and materials, publications, facilities, and equipment for training in all topic areas. The following evidence was presented to support this rule violation:
A. Setzer testified that during an audit of all required audiovisual aids and materials, publications, facilities, and equipment for training, Respondent discovered that the required videos, Anatomy of a Riot and St. Petersburg Riots/Crowd Control were not there for the Crowd Management block of instruction.
B. Additionally, the required video, Innocent Offender was not there for the Dealing with Victims & the Public block of instruction. These videos are identified as required videos within the academic checklists for the individual lesson plan.
C. Setzer testified that Respondent also discovered that the required text, DMV 349 Instruction Manual was not available for the Traffic Crash Investigation block of instruction. This text is identified as required text within the academic checklists for the individual lesson plan.
D. Setzer testified that Respondent also discovered that the required number of radios, Miranda and Juvenile Rights cards, Incident/Supplemental Report forms, cameras and Crime Prevention props were not in the possession of JSCC. Additionally, the clay pigeon thrower was inoperable. This equipment is identified as required equipment within the academic checklists for the individual lesson plan.
E. Setzer testified that Respondent also discovered that the required number of law enforcement police type vehicles properly equipped and inspected were not available. Of the five (5) vehicles provided for the BLET program, two (2) lacked valid inspections and a third did not have an operational PA system.
F. Setzer testified that Respondent never heard from Petitioner regarding any difficulties in receiving funding from JSCC to order additional materials and equipment.
G. The CMG requires, in section XV, BLET:18, (8) that the accredited institution/agency must own four (4) law enforcement police type vehicles equipped with blue lights, siren, radio, PA system and a police suspension package. (Respondent’s Exhibit 28) All cars must meet North Carolina Safety Standards and have a current North Carolina inspection sticker at the time of the course delivery. Id.
H. West testified that on one occasion in the fall of 2009, he was scheduled to instruct the Law Enforcement Driver Training course. (Respondent’s Exhibit 5) Around 7:00 am, he arrived at the driving track with the students and discovered that a trucking company had a Commercial Driver License class in progress. (Respondent’s Exhibit 5) West testified that he called Petitioner and Howell to report the problem, and that the class returned to the school because the course was in use. West was not able to make contact with Petitioner to report the scheduling conflict and unavailability of equipment and resources for the BLET block of instruction.
I. Coats testified that not all the equipment necessary for the firearms course was available. The skeet thrower was inoperable in November 2009 when he taught firearms. Coats also testified that during his teaching he did not have all the videos he needed for one of the courses. He attempted to locate the video but was not able to.
55. Petitioner presented no evidence to the contrary at the hearing.
Allegation 6: Petitioner failed to administer the course in accordance with Criminal Justice Education Training and Standards Commission Procedures and Standards
56. 12 NCAC 09B .0202(a)(9) requires that, In planning, developing, coordinating, and delivering each Commission-certified criminal justice training course, the School Director shall administer the course delivery in accordance with Commission procedures and standards, give consideration to advisory guidelines issued by the Commission, and ensure that the training offered is safe and effective.
57. 12 NCAC 09B.0202(b)(1) further states in part, in planning, developing, coordinating and delivering each Commission-certified Basic Law Enforcement Training Course, the School Director shall: deliver training in accordance with the most current version of the Basic Law Enforcement Training Course Management Guide as published by the North Carolina Justice Academy. The following evidence was presented to support this rule violation:
A. The CMG requires in Section IV. E. that, A driving range designated for criminal justice training, adequate in size and design to safely conduct the law enforcement basic recruit driving course, with the following specifications:
1. Secured by barriers from through traffic while training is being conducted on the range;
2. Warning signs posted at all vehicle access points that shall clearly identify the area as a law enforcement training driving range and limit access to criminal justice trainees, criminal justice instructors, and personnel authorized by the school director;
3. An emergency first-aid kit;
4. Own four (4) automobiles designed and equipped for criminal justice driver training;
5. Restrooms and drinking water for personnel engaged in training; and
6. Telephone or radio communications immediately available to range instructors. (Respondent’s Exhibit 28)
58. 12 NCAC 09B.0201(f) states, Each institution or agency accredited to deliver basic recruit training shall ensure that supplies and equipment for trainees are utilized during course delivery as specified in the Basic Law Enforcement Training Course Management Guide as referenced in 12 NCAC 09B.0205(d). The following evidence was presented to support this rule violation:
A. Setzer testified that during an audit of all required audiovisual aids and materials, publications, facilities, and equipment for training, Respondent discovered that the facilities used during the Law Enforcement Driver Training block of instruction was not secured by barriers from thru-traffic while training was being conducted on the range. The facility also did not have warning signs posted at all vehicle access points that clearly identified the area as a law enforcement training driving range and limited access to criminal justice trainees, criminal justice instructors, and personnel authorized by the school director. Lastly, the range did not have drinking water available and the students provided their own drinking water.
B. Egge testified that the driving course vehicles were very old. The tires were balding, the track had loose gravel all over it and it was very difficult to maintain control over the vehicles while driving on this track. There were 2 newer vehicles but Egge testified that Petitioner would not allow the day class to use the newer vehicles. Egge testified that during the driving course, there were only 2 instructors for 14 students.
C. Coats testified that prior to the audit JSCC did not have any working radios.
59. Petitioner presented no evidence to the contrary at the hearing.
Allegation 7: Petitioner failed to maintain direct supervision, direction and control
60. 12 NCAC 09B .0202(a)(10) requires that, In planning, developing, coordinating, and delivering each Commission-certified criminal justice training course, the School Director shall maintain direct supervision, direction, and control over the performance of all persons to whom any portion of the planning, development, presentation, or administration of a course has been delegated. The following evidence was presented to support this rule violation:
A. Setzer testified that during an interview of Petitioner, Petitioner stated he was unable to maintain direct supervision, direction, and control over the performance of all persons to whom any portion of the planning, development, presentation, or administration of a course has been delegated to in the BLET day program. Petitioner stated that this was a result of being denied access/contact to the BLET day course classroom/students. Petitioner did not call Respondent for assistance and remained the School Director until November 18, 2009 when JSCC submitted paperwork to Respondent removing Petitioner from that capacity.
B. Myers, Petitioner’s direct supervisor at JSCC, testified that Petitioner was instructed not to teach to the day class which had student William Holland in attendance. Although he was not to instruct the BLET day class, Petitioner was still the school director and in charge of all administration and running of both the day and night BLET programs. Myers testified that Petitioner never came to him with concerns about how the programs were being run.
C. West testified that on one occasion in the fall of 2009, he was scheduled to instruct the Law Enforcement Driver Training course. (Respondent’s Exhibit 5) Around 7:00 am, he arrived at the driving track with the students and discovered that a trucking company had a Commercial Driver License class in progress. (Respondent’s Exhibit 5) West testified that he called Petitioner and Howell to report the problem, and that the class returned to the school when the course was in use. West was not able to make contact with Petitioner to report the scheduling conflict and unavailability of equipment and resources for the BLET block of instruction.
D. Patrick Artemisio testified at the hearing. Artemisio testified that he was a student in the BLET day class from August 2009 through December 2009. (Respondent’s Exhibit 8) He testified that he knew Petitioner because he was the director of the BLET class. He testified that he missed one or two days of the Subject Control/Arrest Techniques BLET block of instruction because of a doctor’s appointment, and missed a total of approximately 8 hours of lecture. (Respondent’s Exhibit 8) He testified that the SCAT block involved learning how to handle somebody, how to arrest someone, and what to do if the subject attempts to flee. He testified that the SCAT block of instruction was very important because someone could get hurt if they did not know how to handle the situation. He testified that SCAT taught self defense, arrest techniques, and the block of instruction lasted about one week. Artemisio testified that for make up, he read the material at home. Id. He testified that if a student is absent, then the student is supposed to obtain remedial, and then would be tested on the remedial. He testified that remedial is important in order to do the job adequately. He testified that he was not assigned any make up work for absences, and he was told to read material and was asked questions by Instructor Howell. He testified that he was not as prepared in SCAT as he would have been if he had been present during the course. No remedial was conducted in class, and Instructor Howell asked him approximately five questions to confirm his remedial. Id.
61. 12 NCAC 09B .0404(c) states in part, If the school director grants an excused absence from a class session, he shall schedule make-up work and ensure the satisfactory completion of such work during the current course presentation. The school director shall schedule instructors and reimburse those instructors for the purpose of completion of the makeup work. The following evidence was presented to support this rule violation:
A. The CMG Section VII, B, #2 on Makeup Work for Absences states in part, If you grant an excused absence you must schedule appropriate makeup work and ensure the satisfactory completion of such work during the current course offering NOTE: The school director shall be responsible for reimbursing those instructors for the purpose of completion of the makeup work. (Respondent’s Exhibit 28)
B. The CMG Section XV, BLET 02, #4 states in part, Student exercise programs should incorporate a wide variety of activities to include aerobic events, weight training, calisthenics, and other various combinations. (Respondent’s Exhibit 28)
C. Artemisio testified that for the Physical Fitness Training block of instruction, students played basketball, ultimate Frisbee, or ran while unsupervised. (Respondent’s Exhibit 8) He testified that students were told that if they did not want physical fitness training, they did not have to take the course. Artemisio was told that physical fitness training was optional.
D. The CMG Section XV, BLET 18, #8 states (Responsibilities of the school director: There must be one certified Specialized Driver Instructor for each (six) trainees while actively engaged in a practical performance exercise. (Respondent’s Exhibit 28)
E. West testified that the ratio of the students to instructors were the Law Enforcement Driver Training block of instruction was 14 students to one instructor. When two instructors were present, the ratio was seven students to one instructor.
F. Artemisio testified during the Law Enforcement Driver Training block of instruction, he did not have adequate access to instructors because the instructors were busy with other students.
G. Egge testified that he missed a half a day of the Motor Vehicle Law Course because of a military commitment. Petitioner told Egge that he could make up his time by doing a ride along with a Sampson County Deputy. Egge rode with Deputy Long, who is not a certified instructor.
H. Teresa Barwick testified at the hearing. Barwick was a student at JSCC during the day time delivery of BLET from July through October 2009. Barwick testified that for the Physical Fitness Training block of instruction, she did not receive a lot of instruction with Instructor Sessoms because he had a child in and out of the hospital and was courting a lot. She testified that she was not provided adequate instruction to have the physical fitness training necessary for law enforcement officers. She testified that she never received one-on-one instruction, and that when she asked for one-on-one instruction, she was told that she could speak with someone in the gym to help. She testified that she did not receive adequate instruction, and that the course did not get her up to standards to pass POPAT, which is the standard to complete to pass the BLET program to be an officer.
I. The CMG Section XV, BLET 02, #4 states in part, (Using fitness assessment results, instructors should carefully design individual exercise prescriptions for each students. All students should periodically receive individual counseling sessions to establish fitness goals and adjust other related lifestyle habits (Respondent’s Exhibit 28)
J. The CMG Section XV, Item #2, “One (1) Specialized Physical Fitness Instructor must be present for any fitness activity”. (Respondent’s Exhibit 28)
K. The CMG Section XV, BLET 02, #4 states in part, Student exercise programs should incorporate a wide variety of activities to include aerobic events, weight training, calisthenics, and other various combinations. (Respondent’s Exhibit 28)
62. Petitioner presented no evidence to the contrary at the hearing.
Allegation 8: Petitioner failed to utilize and deliver training in accordance with the Basic Law Enforcement Training Course Management Guide
63. 12 NCAC 09B .0202(b)(1) requires that, In addition to Paragraph (a) of this Rule, in planning developing, coordinating and delivering each Commission-certified Basic Law Enforcement Training Course, the School Director shall deliver training in accordance with the most current version of the Basic Law Enforcement Training Course Management guide as published by the North Carolina Justice Academy.
64. 12 NCAC 09B .0202(a)(4) states in part, (In planning, developing, coordinating each Commission-certified criminal justice training course, the School Director shall notify each instructor that they must comply with the Basic Law Enforcement Course Management Guide and provide them access to the most current version of the Course Management Guide. The following evidence was presented to support this rule violation:
A. Setzer testified that during an audit of all required audiovisual aids and materials, publications, facilities, and equipment for training, Gary Sessoms and Brad Coats (JSCC BLET instructors) were unable to produce a copy of the current version of the CMG. It should be noted that the CMG is available on-line on the NCJA website free of charge.
B. Coats testified that Petitioner did not provide him with an instructor manual or the BLET CMG. Coats did not even know what a CMG was until the audit by Respondent.
C. Setzer testified that training could not be done in accordance with the CMG when some instructors did not have access or even know about the guide itself.
D. Setzer testified that many aspects of the training was not done in accordance with the CMG. As mentioned above, some required equipment and videos were not available to students. The driving track was unsafe, and vehicles used for the track had out of date inspections. Makeup work was not required as set forth in the CMG. When students failed a test, no remediation was provided before a retest as is required in the CMG.
65. Petitioner presented no evidence to the contrary at the hearing.
Allegation 9: Petitioner failed to schedule Certified Instructors in high liability areas
66. 12 NCAC 09B .0202(b)(3) requires that, (In addition to Paragraph (a) of this Rule, in planning developing, coordinating and delivering each Commission-certified Basic Law Enforcement Training Course, the School Director shall schedule only those instructors certified by the Commission to teach those high liability areas as specified in 12 NCAC 09B .0304(a) as either the lead instructor or in any other capacity.
67. 12 NCAC 09B .0304(b) states, To qualify for and maintain any Specialized Instructor Certification, an applicant must possess a valid CPR Certification that included cognitive and skills testing, through an organization whose curriculum meets the national standards set forth by the International Guidelines Conference on Cardiopulmonary Resuscitation and Emergency Cardiovascular Care. The following evidence was presented to support this rule violation:
A. West did not possess CPR certification.
B. Setzer testified that during an audit of instructor files, Respondent discovered that the files of five (5) specialized instructors (Wagner Baskett, James Bateman, Lawrence Dixon, William Grantham, and David West) did not contain a current specialized instructor certification and/or current CPR certification as required in the above rule.
68. Petitioner presented no evidence to the contrary at the hearing.
Allegation 10: Petitioner failed to schedule one specialized instructor for every six trainees in high liability areas
69. 12 NCAC 09B .0202(b)(4) requires that, (In addition to Paragraph (a) of this Rule, in planning developing, coordinating and delivering each Commission-certified Basic Law Enforcement Training Course, the School Director shall with the exception of the First Responder, Physical Fitness, Electrical and Hazardous Materials, and topical areas as outlined in 12 NCAC 09B .0304(a) of this Subchapter, schedule one specialized certified instructor certified by the Commission for each six trainees while actively engaged in a practical performance exercise. The following evidence was presented to support this rule violation:
A. West testified that the ratio of specialized certified instructors to students during the Law Enforcement Driving block of instruction was one instructor for fourteen students. (Respondent’s Exhibit 5) West testified that when two certified instructors were present for the Law Enforcement Driving block of instruction, the ratio of instructors to students was one to seven.
70. Petitioner presented no evidence to the contrary at the hearing.
Allegation 11: Petitioner failed to provide rules, regulations, and requirements
71. 12 NCAC 09B .0202(a)(7)(B) requires that, (In planning, developing, coordinating, and delivering each Commission-certified criminal justice training course, the School Director shall develop, adopt, reproduce, and distribute any supplemental rules, regulations, and requirements determined by the school to be necessary or appropriate for establishing responsibilities and obligations of agencies or departments employing or sponsoring course trainees.
72. 12 NCAC 09B .0202(b)(7)(B) requires that, (In addition to Paragraph (a) of this Rule, in planning developing, coordinating and delivering each Commission-certified Basic Law Enforcement Training Course, the School Director shall not less than 15 days before commencing delivery of the Basic Law Enforcement Training Course, submit to the Commission a Pre-Delivery Report of Training Course Presentation as set out in 12 NCAC 09C .0211 along with the following attachments: a copy of any rules, regulations, and requirements for the school. A copy of such rules shall also be given to each trainee and to the executive officer of each trainee’s employing or sponsoring agency or department at the time the trainee enrolls in the course. The following evidence was presented to support this rule violation:
A. Setzer testified that during an audit of files, Respondent discovered that none of the 38 student files contained copies of the rules provided to the students, or copies of the rules provided to their employing or sponsoring agency. During interviews, Respondent was informed by Brad Coats (JSCC instructor) that Petitioner did not distribute any rules, regulations, and requirements to agencies or departments employing or sponsoring course trainees.
B. Coats testified that Petitioner did not distribute any rules, regulations, and requirements to agencies or departments employing or sponsoring course trainees.
C. In the BLET Course Orientation lesson plan on page 4 in the Instructor Notes section, Note #2 states, every provision must be explained thoroughly and students given the opportunity to ask questions. At the completion of the orientation, it is required that students complete and be given a copy of the (Acknowledgment of Certification Requirements.’ This form must be filed in school records.
73. Petitioner presented no evidence to the contrary at the hearing.
Allegation 12: Petitioner failed to provide written evaluations
74. 12 NCAC 09B .0202(b)(8) requires that, In addition to Paragraph (a) of this Rule, in planning developing, coordinating and delivering each Commission-certified Basic Law Enforcement Training Course, the School Director shall monitor, or designate an instructor certified by the Commission to monitor, the presentations of all instructors once during each three year certification period in each topic taught by the instructor and prepare written evaluations on their performance and suitability for subsequent instructional assignments. The observations shall be of sufficient duration to ensure the instructor is using the Instructional System Design model, and that the delivery is objective based, documented by and consistent with a Commission-approved lesson plan. For each topic area, the School Director’s evaluation shall be based upon the course delivery observations, the instructor’s use of the approved lesson plan, and the results of the student evaluation of the instructor. For probationary instructors, these evaluations shall be prepared on Commission forms and forwarded to the Commission. Based on this evaluation, the School Director shall recommend approval or denial of requests for General Instructor Certification. For all other instructors, these evaluations shall be prepared on Commission forms in accordance with Commission standards as set out in this Chapter. These evaluations shall be kept on file by the school for a period of three years and shall be made available for inspection by a representative of the Commission upon request. In the event the evaluation of an instructor indicates that his or her performance was less than acceptable, the School Director shall forward a copy of the evaluation to the Commission. Any designated instructor certified by the Commission who is evaluating the instructional presentation of another instructor shall hold certification in the same instructional topic area as that for which the instructor is being evaluated. The following evidence was presented to support this rule violation:
A. Setzer testified that during an audit of files, Respondent discovered that the file of Gary Sessoms did not contain written instructor evaluations prepared as required by the code within the past three (3) years for the Subject Control/Arrest Techniques block of instruction. During interviews, Respondent was informed by Gary Sessoms that he was a Commission certified Specialized Instructor in the areas of Subject Control/Arrest Techniques and that he had been teaching in the JSCC’s BLET program since approximately 2002.
75. Petitioner presented no evidence to the contrary at the hearing.
Allegation 13: Petitioner failed properly administer and record test scores
76. 12 NCAC 09B .0202(b)(9)(A) requires that, in addition to Paragraph (a) of this Rule, in planning developing, coordinating and delivering each Commission-certified Basic Law Enforcement Training Course, the School Director shall administer or designate a staff person to administer appropriate tests as determined necessary at various intervals during course delivery to determine and record the level of trainee comprehension and retention of instructional subject-matter. The following evidence was presented to support this rule violation:
A. Setzer testified that a number of these tests were not administered or if they were administered and the student failed, the remedial testing was not done.
B. Pate testified Petitioner instructed him in some courses throughout the night BLET program. When Petitioner administered the tests for those courses, Petitioner would walk around during the test, go up to individual students desks, look at their answers, and while the test was still happening point out the correct answers for students. Pate testified that, during testing, Petitioner pointed to an incorrect answer and say No, and read another answer and say yes, or he pointed to the correct answer and say nothing, indicating that answer was the correct answer. Pate testified that Petitioner did this for 2 to 3 questions. This was done for an end of block test that was provided by Respondent.
C. Artemisio testified that he failed the Criminal Elements block of instruction exam. He testified that he sat in on the Criminal Elements block of instruction when taught during the nighttime delivery of the Basic Law Enforcement Training course, which was taught by Petitioner. When Artemisio achieved a passing grade after retaking the block of instruction in the nighttime class taught by Petitioner, Petitioner erased his failing grade and the passing grade was substituted as the original exam score. He testified that he had three opportunities to take the Criminal Elements block of instruction, but that he should have only had two opportunities to take this block.
D. Barwick testified that she failed the Juvenile Law block of instruction exam. She was allowed to retake the Juvenile Law block of instruction during the nighttime delivery of the Basic Law Enforcement Training course, which was taught by Petitioner. When Barwick achieved a passing grade after retaking the block of instruction in the nighttime class taught by Petitioner, her failing grade was erased and the passing grade was substituted as the original exam score.
77. Petitioner presented no evidence to the contrary at the hearing.
Allegation 14: Petitioner failed to administer reading component tests
78. Until amended on June 1, 2010, 12 NCAC 09B .0203(e) required that, the school shall administer the reading component of a standardized test which reports a grade level for each trainee participating in the Basic Law Enforcement Training Course. The specific type of test instrument shall be determined by the School Director and shall be administered no later than by the end of the first two weeks of a presentation of the Basic Law Enforcement Training Course. The following evidence was presented to support this rule violation:
A. Setzer testified that during an audit of files, Respondent discovered that 12 of the 38 student were not administered the reading component test no later than by the end of the first two weeks of a presentation of the Basic Law Enforcement Training Course.
B. Setzer testified that Two (2) students (Christopher Turner and Aaron Harrell) were not administered the reading component test. Six (6) students (Jimmie Stokes, William Tripp, Douglas Gabel, Megan McMahon, Stephen Mintz, and Casey Wiley) were administered the reading component test more than two weeks after the beginning of the BLET course. Two (2) students (Charles Emory and Ryan Jones) were not administered the reading component test due to them possessing a Bachelor’s degree.
C. Barwick testified that she was not administered the reading component test required for completion of the BLET course delivery.
D. The remaining 26 students were administered the reading component test prior to the beginning of the BLET course.
E. Setzer testified that during interviews, Respondent was informed by Petitioner that all students were not administered the reading component of a standardized test which reports a grade level for each trainee participating in the Basic Law Enforcement Training Course.
79. Petitioner presented no evidence to the contrary at the hearing.
Allegation 15: Petitioner failed to monitor trainee’s attendance
80. 12 NCAC 09B .0404(a) requires that, each trainee enrolled in a certified Basic Law Enforcement Training Course shall attend all class sessions. The school director shall monitor the trainee’s regular attendance at criminal justice training courses in which the trainee is enrolled. The following evidence was presented to support this rule violation:
A. Setzer testified that during interviews, Brad Coats (JSCC administrative staff) told Respondent that Petitioner did not monitor the trainee’s regular attendance at criminal justice training courses in which the trainee was enrolled. Respondent discovered discrepancies between the student’s files and the grade book.
81. 12 NCAC 09B .0404(c) states, If the school director grants an excused absence from a class session, he shall schedule make up work and ensure the satisfactory completion of such work during the current course presentation. The school director shall schedule instructors and reimburse those instructors for the purpose of completion of the makeup work. Absences which occur during the last forty hours of the training course may be made up in a subsequent delivery; however, the school director shall notify the Standards Division prior to scheduling the makeup work. The following evidence was presented to support this rule violation:
A. Setzer testified that during an audit of files, Respondent discovered from the student files, that 21 of the 38 students were absent a total of 50 days. Documentation did not exist to confirm that each of these missed days were made up nor what method was used to make up missed days indicated in the grade book maintained by Petitioner as the School Director.
82. Petitioner presented no evidence to the contrary at the hearing.
Allegation 16: Petitioner failed to regulate excessive absences
83. 12 NCAC 09B .0404(b) requires that the school director may excuse a trainee from attendance at specific class sessions. However, in no case may excused absences exceed five percent of the total class hours for the course offering. A trainee shall no be eligible for administration of the state comprehensive examination and shall be dismissed from the course if the cumulative total of class absences exceeds five percent regardless of the prior completion of make-up work. The following evidence was presented to support this rule violation:
A. Michael Braswell testified at the hearing. Braswell was a student at JSCC for the delivery of the day time course for BLET from July 2009 through December 2009. He testified that he missed approximately three or four days of course instruction. He testified that if students were absent, they were required to contact the school director, and must write a paragraph stating the date he/she was absent and why he/she was absent. He testified that Petitioner was the school director, and that he told Petitioner that he had been absent when he returned. Braswell testified that no disciplinary action was taken and that he was not dismissed from the course because of his absences. Braswell also testified that one of the classes that he missed was the first responders class, which had a hands-on scenario, and that he did not make up that class. He thought that he should have been required to sit in or make up the time that he missed.
B. Setzer testified that during an audit of files, Respondent discovered that two (2) students (Matthew Braswell and Isaiah Kennedy) accumulated absences which exceeded five percent of the total class offerings; however, they were not dismissed from the course. The BLET day class consisted of 622 hours and both Braswell and Kennedy missed four (4) days each of instruction (32 hrs.).
84. Petitioner presented no evidence to the contrary at the hearing.
Allegation 17: Petitioner failed to require make up work
85. 12 NCAC 09B .0404(c) requires that, if the school director grants an excused absence from a class session, he shall schedule make up work and ensure the satisfactory completion of such work during the current course presentation. The school director shall schedule instructors and reimburse those instructors for the purpose of completion of the make up work. Absences which occur during the last forty hours of the training course may be made up in a subsequent delivery; however, the school director shall notify the Standards Division prior to scheduling the make-up work. The following evidence was presented to support this rule violation:
A. Setzer testified that during an audit of files, Respondent discovered that 21 students were absent from class on 50 days or portions thereof. The student files did not contain documentation of satisfactory completion of make-up work for 45 of these days due to insufficient record keeping. This information was gathered from students during interviews. Student comments support the fact that required makeup of absences was not done.
B. Artemisio testified that he missed one or two days of the Subject Control/Arrest Techniques BLET block of instruction because of a doctor’s appointment, and missed a total of approximately 8 hours of lecture. (Respondent’s Exhibit 8) He testified that the SCAT block involved learning how to handle somebody, how to arrest someone, and what to do if the subject attempts to flee. He testified that the SCAT block of instruction was very important because someone could get hurt if they did not know how to handle the situation. He testified that SCAT taught self defense, arrest techniques, and the block of instruction last about one week. Artemisio testified that for make up, he read the material at home. Id. He testified that if a student is absent, then the student is supposed to obtain remedial, and than would be tested on the remedial. He testified that remedial is important in order to do the job adequately. He testified that he was not assigned any make up work for absences, and he was told to read material and was asked questions by Instructor Howell. He testified that he was not as prepared in SCAT as he would have been if he had been present during the course. No remedial was conduct in class, and Instructor Howell asked him approximately 5 questions to confirm his remedial. Id.
C. Setzer testified that during interviews, Respondent was informed by a student, Christopher Egge, that he was absent for one-half day due to a military commitment (Marine Corps Reserve). During this time, Egge missed a portion of the Motor Vehicle Law block of instruction and Petitioner informed Egge that he could make up his missed time by doing a "ride along” with Sampson County Deputy Dewon Long for four (4) hours.
D. Egge testified at the hearing that he missed a half a day of the Motor Vehicle Law
Course because of a military commitment. Petitioner told Egge that he could make up this time by doing a ride with a Sampson County Deputy. Egge rode with Deputy Long, who is not a certified instructor.
86. Petitioner presented no evidence to the contrary at the hearing.
Allegation 18: Petitioner failed to provide reexamination following remediation
87. 12 NCAC 09B .0405(b)(1) requires that, (The trainee shall demonstrate proficiency in the school’s cognitive topical area tests by achieving a minimum score of 70 percent on each topical area test and shall also demonstrate proficiency in the motor skills and performance subjects: a trainee who fails to achieve a passing score on the first attempt shall have one opportunity for reexamination following remediation. The following evidence was presented to support this rule violation:
A. Setzer testified that JSCC has adopted more stringent requirements than those required by the Commission regarding minimum scores. Specifically, the minimum passing score for each block of BLET instruction at JSCC is 78% instead of Respondent’s 70%.
B. Setzer testified that during an audit of files, Respondent discovered that 32 of the 38 students failed their initial end of block exams/practical skills exercises in one or more blocks of instruction. Of those 32 students, 21 did not receive remediation/retest in one or more blocks of instruction.
C. Setzer testified that the instructions on remedial training for the Law Enforcement Driving course in BLET found in the handout section of the lesson plan states, Trainees placed in this phase of training will receive, at a minimum, the amount of instructional time, and the number of practice attempt(s), they received during the evaluation phase. The remedial phase will be conducted similar in design as the instructional phase.
E. Myers testified that he observed the driving portion of BLET and there was no remediation given to students who failed. Myers felt like the instructors did not want to help the students learn and just failed them without proper remediation.
F. Coats testified that while under Petitioner’s direction in 2009, he did no remedial training for students who failed tests during their BLET training.
88. Petitioner presented no evidence to the contrary at the hearing.
Allegation 19: Petitioner failed to monitor and regulate topical test failures
89. 12 NCAC 09B .0405(b) requires that, The trainee shall demonstrate proficiency in the school’s cognitive topical area tests by achieving a minimum score of 70 percent on each topical area test and shall also demonstrate proficiency in the motor skills and performance subjects:. . . (2) a trainee shall be allowed failure, remediation, and reexamination in no more than four topical area tests. It should be noted that JSCC has adopted more stringent requirements than those required by the Commission regarding minimum scores. Specifically, the minimum passing score for each block of instruction at JSCC is 78% and (3) . . . . upon initial failure of a fifth topical area test, the trainee shall not be allowed remediation or reexamination and shall be immediately dismissed from the course and shall be required to complete a subsequent delivery of Basic Law Enforcement Training in its entirety. The following evidence was presented to support this rule violation:
A. Setzer testified that during an audit of files, Respondent discovered that two (2) students (Christopher Grady and Justin Gray) failed six (6) topical area tests and two (2) other students (Aaron Harrell and Lionel Spencer) failed eight (8) topical area tests before being dropped from the BLET program. Respondent also discovered that one (1) student (Michael Murphy) failed five (5) topical area tests and was not dismissed from the BLET program.
90. Petitioner presented no evidence to the contrary at the hearing.
Allegation 20: Petitioner failed to ensure compliance with BLET Course Management Guide
91. 12 NCAC 09B .0502(b)(2) requires that, To retain certification as a school director, the school director shall maintain and comply with the current version of the (Basic Law Enforcement Training Course Management Guide. The following evidence was presented to support this rule violation:
A. Setzer testified that Gary Sessoms and Brad Coats (JSCC BLET Instructors) were unable to produce a copy of the current version of the CMG during an audit of BLET equipment, facilities, texts, and videos.
B. Coats testified that Petitioner did not provide an instructor manual or the BLET CMG to him. Petitioner did not tell Coats to comply with the CMG. Coats did not even know what a CMG was until the audit by Respondent.
C. Setzer testified that many aspects of the training was not done in accordance with the CMG. As mentioned above, some required equipment and videos were not available to students. The driving track was unsafe, and vehicles used for the track had out of date inspections. Makeup work was not required as set forth in the CMG. When students failed a test, no remediation was provided before a retest as is required in the CMG.
92. Petitioner presented no evidence to the contrary at the hearing.
Allegation 21: Petitioner failed to meet requirements to retain school director certification
93. 12 NCAC 09B .0502(b)(3) requires that, To retain certification as a school director, the school director shall maintain and ensure compliance with the current version of the Basic Law Enforcement Training Instructor Notebook assigned to each certified school. 09B .0502(b)(4) states the school director shall perform the duties and responsibilities of a school director as specifically required in Rule .0202 of this Subchapter. The following evidence was presented to support this rule violation:
A. Setzer testified that during interviews, Respondent was informed by Petitioner that he did not print out all of the 2009 BLET lesson plans and did not provide them to instructors due to a lack of help.
B. Brad Coats, an instructor, testified that the BLET instructor manual was somewhat up to date. It was missing some blocks of instruction or had older versions.
C. Setzer testified that Petitioner failed to select and schedule instructors who were certified by the Commission. One course had to be repeated entirely because the instructor was not a specialized instructor in the topic.
D. Setzer testified that Petitioner failed to maintain direct supervision and control over all instructors and their delivery of the BLET courses. Petitioner also failed to ensure all required materials and equipment were available for each BLET course.
94. Petitioner presented no evidence to the contrary at the hearing.
INSTRUCTOR CERTIFICATION
95. 12 NCAC 09A .0203, entitled Sanctions for Violations by Individuals states, in pertinent part: When any person certified by the Commission is found to have knowingly and willfully violated any provision or requirement of these Rules, the Commission may take action to correct the violation and to ensure that the violation does not re-occur, including: ...(5) revoking or denying the individual’s certification. The following evidence was presented to support this rule violation:
96. 12 NCAC 09B .0301, entitled Minimum Standards for Criminal Justice Instructors states, in pertinent part, that:
(a) Any person participating in a Commission-certified criminal justice training course or program as an instructor, teacher, professor, lecturer, or other participant making presentations to the class shall first be certified by the Commission as an instructor.
. . . .
(f) The Commission may deny, suspend, or revoke an instructor’s certification when the Commission finds that the person:
. . . .
(5) has demonstrated in the delivery of commission-mandated training, unprofessional personal conduct, defined as an act that is: conduct for which no reasonable person should expect to receive prior warning; job-related conduct which constitutes a violation of State or federal law; conviction or commission of a criminal offense as set out in 12 NCAC 09A .0204; the willful violation of Rules of this Chapter; conduct that is detrimental to instruction in the Commission’s mandated courses; the abuse of client(s), student(s) over whom the instructor has charge; or falsification of an instructor application or in other employment documentation[.]
. . . .
(8) has failed to meet or maintain good moral character as defined in: re Willis, 299 N.C. 1, 215 S.E. 2d 771 appeal dismissed 423 U.S. 976 (9175); State v. Harris, 216 N.C. 746, 6 S.E. 2d 854 (1940); in re Legg, 325 N.C. 658, 386 S.E. 2d 174(1989); in re Applicants for License, 143 N.C. 1, 55 S.E. 635 (1906); in re Dillingham, 188 N.C. 162, 124 S.E. 130 (1924); State v. Benbow, 309 N.C. 538, 308 S.E. 2d 647 (1983); and their progeny, as required to effectively discharge the duties of a criminal justice instructor[.]
Allegation 22: Petitioner lacks good moral character required for General and Specialized Instructors
97. 12 NCAC 09B .0301(f) states that the Commission may deny, suspend, or revoke an instructor’s certification when the Commission finds that the person:
(8) has failed to meet or maintain good moral character as defined in: Re Willis, 299 N.C. 1, 215 S.E. 2d 771 appeal dismissed 423 U.S. 976 (9175); State v. Harris, 216 N.C. 746, 6 S.E. 2d 854 (1940); in Re Legg, 325 N.C. 658, 386 S.E. 2d 174(1989); in Re Applicants for License, 143 N.C. 1, 55 S.E. 635 (1906); in Re Dillingham, 188 N.C. 162, 124 S.E. 130 (1924); State v. Benbow, 309 N.C. 538, 308 S.E. 2d 647 (1983); and their progeny, as required to effectively discharge the duties of a criminal justice instructor[.]
A. Anthony Pate testified Petitioner instructed him in some courses throughout the night BLET program. When Petitioner administered the tests for those courses Petitioner would walk around during the test, go up to individual students desks, look at their answers, and while the test was still happening point out the correct answers for students. Pate testified that, during testing, Petitioner pointed to an incorrect answer and say No, and read another answer and say yes, or he pointed to the correct answer and say nothing, indicating that answer was the correct answer. Pate testified that Petitioner did this of 2 to 3 questions. This was done for an end of block test that was provided by Respondent.
C. Artemisio testified that he failed the Criminal Elements block of instruction exam. He testified that he sat in on the Criminal Elements block of instruction when taught during the nighttime delivery of the Basic Law Enforcement Training course, which was taught by Petitioner. When Artemisio achieved a passing grade after retaking the block of instruction in the nighttime class taught by Petitioner, Petitioner erased his failing grade and the passing grade was substituted as the original exam score. He testified that he had three opportunities to take the Criminal Elements block of instruction, but that he should have only had two opportunities to take this block.
C. Barwick testified that she failed the Juvenile Law block of instruction exam. She was allowed to retake the Juvenile Law block of instruction during the nighttime delivery of the Basic Law Enforcement Training course, which was taught by Petitioner. When Barwick achieved a passing grade after retaking the block of instruction in the nighttime class taught by Petitioner, her failing grade was erased and the passing grade was substituted as the original exam score.
D. Petitioner, while interviewed by Respondent, stated that he did allow some students to retake the Criminal Law block of instruction. When asked if the original score was erased and the second score was recorded as the first score, Petitioner responded, Yes. Petitioner also acknowledged that he made it known to the entire day class that he would erase their scores and then remediate them for a failed attempt.
E. Setzer testified that Petitioner’s willingness to help BLET students cheat on end of block exams and Petitioner’s erasing of failing test scores and replacing of passing test scores reflects a lack of good moral character for Petitioner to be an Instructor.
98. Petitioner presented no evidence to the contrary at the hearing.
Allegation 23: Petitioner violated the Commission rules because he exhibits unprofessional personal conduct
99. 12 NCAC 09B .0301(f) states that the Commission may deny, suspend, or revoke an instructor’s certification when the Commission finds that the person:
(5) has demonstrated in the delivery of commission-mandated training, unprofessional personal conduct, defined as an act that is: conduct for which no reasonable person should expect to receive prior warning; job-related conduct which constitutes a violation of State or federal law; conviction or commission of a criminal offense as set out in 12 NCAC 09A .0204; the willful violation of Rules of this Chapter; conduct that is detrimental to instruction in the Commission’s mandated courses; the abuse of client(s), student(s) over whom the instructor has charge; or falsification of an instructor application or in other employment documentation[.]
A. Setzer testified that all the deficiencies found at JSCC BLET program show a willful violation of Respondent’s administrative code that is detrimental to instructions of Respondents’ mandated courses. Setzer testified that he had never seen so many deficiencies at a BLET program. Petitioner, while school director failed to follow the administrative code in many areas including: procuring of mandated equipment and videos, ensuring qualified instructors taught each block of instruction, ensuring specialized instructors had valid CPR certification, ensuring the firearms and driving courses were not double booked with other JSCC classes, ensuring make up work was required when students were absent, ensuring testing was done with integrity and without cheating, ensuring students who failed a test were provided proper remediation before being given a retest.
B. Setzer testified that the above failures resulted in the canceling of JSCC BLET course where students had almost fully completed their course work. Those students were not able to sit for the state exam and had to retake BLET over in its entirety. Setzer testified that had Petitioner followed the administrative code for administering the BLET program and requirements of the school director, this would not have happened.
100. It should also be noted that a person who has had his instructor certification suspended/revoked may not participate in a commission-accredited criminal justice training course or program as an instructor, teacher, professor, lecturer, or other participant making presentations to the class and may not exercise any authority of a Commission-certified instructor during a period for which the person’s certification is suspended/revoked [12 NCAC 09B .0301(a)].
101. Petitioner presented no evidence to the contrary at the hearing.
LAW ENFORCEMENT OFFICER CERTIFICATION
102. NCAC 09A .0204 entitled Suspension: Revocation: or Denial of Certification states, in pertinent part, that:
(b) 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:
(2) 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 or fails to meet or maintain one or more of the minimum training standards required by 12 NCAC 09B .0200 or 12 NCAC 09B .0400 for the category of the officer’s certification;
. . . .
(6) has knowingly made a material misrepresentation of any information required for certification or accreditation;
. . . .
(8) has knowingly and willfully, by any means of false pretense, deception, defraudation, misrepresentation or cheating whatsoever, aided another person in obtaining or attempting to obtain credit, training or certification from the Commission[.]
(c) Following suspension, revocation, or denial of the person’s certification, the person may not remain employed or appointed as a criminal justice officer and the person may not exercise any authority of a criminal justice officer during a period for which the person's certification is suspended, revoked, or denied.
103. 12 NCAC 09A .0205, entitled Period of Suspension: Revocation: or Denial, states, in pertinent part, that:
(b) 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:
. . . .
(4) material misrepresentation of any information required for certification or accreditation; or
(5) obtaining, attempting to obtain, aiding another person to obtain, or aiding another person to attempt to obtain credit, training or certification by any means of false pretense, deception, defraudation, misrepresentation or cheating[.]
104. 12 NCAC 09B .0101(3), entitled “Minimum Standards for Criminal Justice Officers,” states, in pertinent part, that: “Every criminal justice officer employed by an agency in North Carolina shall: (3) be of good moral character pursuant to G.S. 17C-10 and as determined by a thorough background investigation[.]”
105. Petitioner presented no evidence to the contrary at the hearing.
Allegation 24: Petitioner knowingly made a material misrepresentation of information required for certification.
106. 12 NCAC 09A .0204(b)(6) states, 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. The following evidence was presented to support this rule violation:
107. On November 24, 1999, Petitioner submitted a signed, sworn, and notarized Personal History Statement Form F-3 for his application for certification with Surf City Police Department. (Respondent’s Exhibit 20). Petitioner signed the Form F-3 directly below the statement that I hereby certify that each and every statement made on this form is true and complete and I understand that any misstatement or omission of information will subject me to disqualification or dismissal. Id. Question 26 on Petitioner’s Form F-3 states: if you have ever been discharged or requested to resign from any position because of criminal or personal misconduct or rules violation, give details. Petitioner answered this question by stating: Yes, Spring Lake Police Dept. Services No Longer Needed - Auxiliary Police.
A. On May 12, 1989, Cumberland County Sheriff’s Office filed a Report of Separation Form F-5 on behalf of Petitioner. (Respondent’s Exhibit 17) The Form F-5 stated that Petitioner was a Deputy/Patrol with the Cumberland County Sheriff’s Office from April 10, 1989 through May 12, 1989. Id. The Form F-5 stated that Petitioner was dismissed from employment, and that the reason for dismissal was "employee was terminated because of his conduct unbecoming an officer." Id. The Form F-5 stated that [t]his agency would not consider this individual for reappointment. Id.
B. On April 11, 1989, Petitioner submitted a signed, sworn, and notarized Personal History Statement Form F-3 for his application for certification with the Cumberland County Sheriff’s Department. (Respondent’s Exhibit 18) Petitioner signed the Form F-3 directly below the statement that 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 will subject me to disqualification or dismissal. Question 28 on Petitioner’s Form F-3 states that If you have ever been discharged or requested to resign from any position because of misconduct or unsatisfactory service, give details. (Respondent’s Exhibit 18) Petitioner answered this question by stating: (Had differences in Business Practice with 2 Fellow Employees. Id.
108. On December 31, 1999, a Mandated Background Information Form F-8 was completed on behalf of Petitioner’s application for certification. (Respondent’s Exhibit 21) In response to the question, have you ever been terminated or asked to resign from any employment? Petitioner answered Spring Lake. Id.
A. On May 12, 1989, Cumberland County Sheriff’s Office filed a Report of Separation Form F-5 on behalf of Petitioner. (Respondent’s Exhibit 17) The Form F-5 stated that Petitioner was a Deputy/Patrol with the Cumberland County Sheriff’s Office from April 10, 1989 through May 12, 1989. Id. The Form F-5 stated that Petitioner was dismissed from employment, and that the reason for dismissal was employee was terminated because of his conduct unbecoming an officer. Id. The Form F-5 stated that [t]his agency would not consider this individual for reappointment. Id.
B. On April 11, 1989, Petitioner submitted a signed, sworn, and notarized Personal History Statement Form F-3 for his application for certification with the Cumberland County Sheriff’s Department. (Respondent’s Exhibit 18) Petitioner signed the Form F-3 directly below the statement that (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 will subject me to disqualification or dismissal. Question 28 on Petitioner’s Form F-3 states: if you have ever been discharged or requested to resign from any position because of misconduct or unsatisfactory service, give details. (Respondent’s Exhibit 18) Petitioner answered this question by stating: Had differences in Business Practice with 2 Fellow Employees. Id.
109. On April 7, 2010, Petitioner submitted a signed, sworn, and notarized Personal History Statement Form F-3 for his application for certification with Parkton Police Department. (Respondent’s Exhibit 22) Petitioner signed the Form F-3 directly below the statement that I hereby certify that each and every statement made on this form is true and complete and I understand that any misstatement or omission of information will subject me to disqualification or dismissal. Id. Question 26 on Petitioner’s Form F-3 states: if you have ever been discharged or requested to resign from any position because of criminal or personal misconduct or rules violations, give details. Id. Petitioner answered Question 26 as follows: April 2010: Surf City Police Department - Unable to meet monthly hour requirements as auxiliary officer; 1997: Spring Lake Police Department - Services no longer needed as auxiliary officer; 1991: Cumberland County Sheriff’s Office - Change of Sheriff’s.
A. On May 12, 1989, Cumberland County Sheriff’s Office filed a Report of Separation Form F-5 on behalf of Petitioner. (Respondent’s Exhibit 17) The Form F-5 stated that Petitioner was a Deputy/Patrol with the Cumberland County Sheriff’s Office from April 10, 1989 through May 12, 1989. Id. The Form F-5 stated that Petitioner was dismissed from employment, and that the reason for dismissal was "employee was terminated because of his conduct unbecoming an officer. Id. The Form F-5 stated that [t]his agency would not consider this individual for reappointment" Id.
B. On April 11, 1989, Petitioner submitted a signed, sworn, and notarized Personal History Statement Form F-3 for his application for certification with the Cumberland County Sheriff’s Department. (Respondent’s Exhibit 18) Petitioner signed the Form F-3 directly below the statement that 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 will subject me to disqualification or dismissal. Question 28 on Petitioner’s Form F-3 states that: if you have ever been discharged or requested to resign from any position because of misconduct or unsatisfactory service, give details. (Respondent’s Exhibit 18) Petitioner answered this question by stating: Had differences in Business Practice with 2 Fellow Employees. Id.
110. Richard Squires, an investigator for Respondent, testified at the hearing. Squires testified that he received the forms for Petitioner’s application for certification. He testified that the forms are required to ensure that officers meet minimum standards required to be certified by North Carolina. Squires testified that truthfulness is important for the forms because a core function of law enforcement is to testify and the officer must be truthful to do this job. He testified that it was important or material to know about the information and the reason why Petitioner was terminated in previous jobs to show that the applicant is being truthful and to show a pattern of whether the applicant is suitable for law enforcement if there is a pattern of misconduct.
111. Respondent’s Exhibit 19 included stipulations for a Final Agency Decision between the Commission, Petitioner, and the Administrative Law Judge. Petitioner stipulated on May 11, 1989, that he was terminated from his employment as shown by the Report of Separation. The Report of Separation stated that Petitioner was dismissed because of misconduct.
112. Petitioner presented no evidence to the contrary at the hearing.
Allegation 25: Petitioner aided or attempted to aid another person in obtaining credit, training or certification from the Commission
113. 12 NCAC 09A .0204(b)(8) which states, 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, aided another person in obtaining or attempting to obtain credit, training or certification from the Commission. The following evidence was presented to support this rule violation:
A. Anthony Pate testified Petitioner instructed him in some courses throughout the night BLET program. When Petitioner administered the tests for those courses Petitioner would walk around during the test, go up to individual students desks, look at their answers, and while the test was still happening point out the correct answers for students. Pate testified that, during testing, Petitioner pointed to an incorrect answer and say No, and read another answer and say yes,’ or he pointed to the correct answer and say nothing, indicating that answer was the correct answer. Pate testified that Petitioner did this of 2 to 3 questions. This was done for an end of block test that was provided by Respondent.
C. In Section XIII. C. of the CMG under Remediation, the guide states in part, A record of all testing for each topic area shall be maintained, including the original and remediation scores. (Respondent’s Exhibit 28)
D. Artemisio testified that he failed the Criminal Elements block of instruction exam. He testified that he sat in on the Criminal Elements block of instruction when taught during the nighttime delivery of the Basic Law Enforcement Training course, which was taught by Petitioner. When Artemisio achieved a passing grade after retaking the block of instruction in the nighttime class taught by Petitioner, Petitioner erased his failing grade and the passing grade was substituted as the original exam score. He testified that he had three opportunities to take the Criminal Elements block of instruction, but that he should have only had two opportunities to take this block.
E. Barwick testified that she failed the Juvenile Law block of instruction exam. She was allowed to retake the Juvenile Law block of instruction during the nighttime delivery of the Basic Law Enforcement Training course, which was taught by Petitioner. When Barwick achieved a passing grade after retaking the block of instruction in the nighttime class taught by Petitioner, her failing grade was erased and the passing grade was substituted as the original exam score.
F. In Section VIII C of the CMG under Remediation, the guides states in part, Whenever a student’s performance in a functional area is determined to be failing, remediation efforts should be undertaken immediately. (Respondent’s Exhibit 28)
G. Petitioner, while interviewed by Respondent stated that he did allow some students to retake the Criminal Law block of instruction. When asked if the original score was erased and the second score was recorded as the first score, Petitioner responded, Yes. Petitioner also acknowledged that he made it known to the entire day class that he would erase their scores and then remediate them for a failed attempt.
114. Petitioner presented no evidence to the contrary at the hearing.
Allegation 26: Petitioner lacked good moral character required of certified law enforcement officers.
115. 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. 12 NCAC 09B .0101(3) requires that every criminal justice officer employed by an agency in North Carolina shall be of good moral character pursuant to N.C.G.S. § 17C-10 and as determined by a thorough background investigation. The following evidence was presented to support this rule violation:
A. The facts and circumstances surrounding Petitioner’s misconduct as a school director, an instructor, and his misrepresentation on certification forms for certification form with the Parkton Police Department and Surf City Police Department are indicative of a lack of good moral character. Petitioner’s willingness to help BLET students cheat on end of block exams and Petitioner’s erasing of failing test scores and replacing of passing test scores reflects a pattern of a lack of good moral character for Petitioner to be a law enforcement officer.
116. Petitioner presented no evidence to the contrary at the hearing.
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 and Chapter 9B, to certify school directors, general and specialized instructors, and law enforcement officers and to revoke, suspend, or deny such certification.
School Director Certification
3. 12 NCAC 09B. 0202, entitled Responsibilities of the School Director states in pertinent part:
(a) In planning, developing, coordinating, and delivering each Commission-certified criminal justice training course, the School Director shall:
. . . .
(3) Provide each instructor with a current Commission course outline and all necessary additional information concerning the instructor’s duties and responsibilities;
(4) Notify each instructor that they must comply with the Basic Law Enforcement Course Management Guide and provide them access to the most current version of the Course Management Guide;
(5) Review each instructor’s lesson plans and other instructional materials for conformance to Commission standards and to minimize repetition and duplication of subject matter;
(6) Arrange for the timely availability of appropriate audiovisual aids and materials, publications, facilities, and equipment for training in all topic areas;
(7) Develop, adopt, reproduce, and distribute any supplemental rules, regulations, and requirements determined by the school to be necessary or appropriate for:
. . . .
(B) establishing responsibilities and obligations of agencies or departments employing or sponsoring course trainees; and
. . . .
(9) Administer the course delivery in accordance with Commission procedures and standards, give consideration to advisory guidelines issued by the Commission, and ensure that the training offered is safe and effective;
(10) Maintain direct supervision, direction, and control over the performance of all persons to whom any portion of the planning, development, presentation, or administration of a course has been delegated; and
(b) In addition to Paragraph (a) of this Rule, in planning developing, coordinating and delivering each Commission-certified Basic Law Enforcement Training Course, the School Director shall:
(1) Deliver training in accordance with the most current version of the Basic Law Enforcement Training Course Management Guide as published by the North Carolina Justice Academy;
. . . .
(3) Schedule only those instructors certified by the Commission to teach those high liability areas as specified in 12 NCAC 09B .0304(a) as either the lead instructor or in any other capacity;
(4) With the exception of the First Responder, Physical Fitness, Electrical and Hazardous Materials, and topical areas as outlined in 12 NCAC 09B .0304(a) of this Subchapter, schedule one specialized certified instructor certified by the Commission for each six trainees while actively engaged in a practical performance exercise;
. . . .
(7) Not less than 15 days before commencing delivery of the Basic Law Enforcement Training Course, submit to the Commission a Pre-Delivery Report of Training Course Presentation as set out in 12 NCAC 09C .0211 along with the following attachments:
. . . .
(B) a copy of any rules, regulations, and requirements for the school. A copy of such rules shall also be given to each trainee and to the executive officer of each trainee’s employing or sponsoring agency or department at the time the trainee enrolls in the course;
(9) Administer or designate a staff person to administer appropriate tests as determined necessary at various intervals during course delivery:
. . . .
(A) to determine and record the level of trainee comprehension and retention of instructional subject- matter[.]
4. 12 NCAC 09B .0203, entitled Admission of Trainees, states in pertinent part:
(a) The school director shall not admit any individual as a trainee in a presentation of the Basic Law Enforcement Training Course who is not a citizen of the United States.
. . . .
(f) The school shall not admit any individual as a trainee in a presentation of the Basic Law Enforcement Training Course unless as a prerequisite the individual has provided to the School Director a medical examination report, completed by a physician licensed to practice medicine in North Carolina, a physician’s assistant, or a nurse practitioner, to determine the individual’s fitness to perform the essential job functions of a criminal justice officer. The Director of the Standards Division shall grant an exception to this standard for a period of time not to exceed the commencement of the physical fitness topical area when failure to timely receive the medical examination report is not due to neglect on the part of the trainee.
(g) The school shall not admit any individual as a trainee in a presentation of the Basic Law Enforcement Training Course unless as a prerequisite the individual is a high school graduate or has passed the General Educational Development Test indicating high school equivalency. High school diplomas earned through correspondence enrollment are not recognized toward the educational requirements.
(h) The school shall not admit any individual trainee in a presentation of the Basic Law Enforcement Training Course unless as a prerequisite the individual has provided the certified School Director a certified criminal record check for local and state records for the time period since the trainee has become an adult and from all locations where the trainee has resided since becoming an adult. An Administrative Office of the Courts criminal record check or a comparable out-of-state criminal record check will satisfy this requirement.
5. 12 NCAC 09B .0201(f) entitled Administration of Criminal Justice Schools, states, in pertinent part: Each institution or agency accredited to deliver basic recruit training shall ensure that supplies and equipment for trainees are utilized during course delivery as specified in the Basic Law Enforcement Training Course Management Guide as referenced in 12 NCAC 09B .0205(d).
6. 12 NCAC 09B .0202 entitled Responsibilities of the School Director states in pertinent part that:
(b) In addition to Paragraph (a) of this Rule, in planning developing, coordinating and delivering each Commission-certified Basic Law Enforcement Training Course, the School Director shall:
(8) Monitor, or designate an instructor certified by the Commission to monitor, the presentations of all instructors once during each three year certification period in each topic taught by the instructor and prepare written evaluations on their performance and suitability for subsequent instructional assignments. The observations shall be of sufficient duration to ensure the instructor is using the Instructional System Design model, and that the delivery is objective based, documented by and consistent with a Commission-approved lesson plan. For each topic area, the School Director’s evaluation shall be based upon the course delivery observations, the instructor’s use of the approved lesson plan, and the results of the student evaluation of the instructor. For probationary instructors, these evaluations shall be prepared on Commission forms and forwarded to the Commission. Based on this evaluation, the School Director shall recommend approval or denial of requests for General Instructor Certification. For all other instructors, these evaluations shall be prepared on Commission forms in accordance with Commission standards as set out in this Chapter. These evaluations shall be kept on file by the school for a period of three years and shall be made available for inspection by a representative of the Commission upon request. In the event the evaluation of an instructor indicates that his or her performance was less than acceptable, the School Director shall forward a copy of the evaluation to the Commission. Any designated instructor certified by the Commission who is evaluating the instructional presentation of another instructor shall hold certification in the same instructional topic area as that for which the instructor is being evaluated[.]
7. 12 NCAC 09B .0304 entitled Specialized Instructor Certification states, in pertinent part: (b) To qualify for and maintain any Specialized Instructor Certification, an applicant must possess a valid CPR Certification that included cognitive and skills testing, through an organization whose curriculum meets the national standards set forth by the International Guidelines Conference on Cardiopulmonary Resuscitation and Emergency Cardiovascular Care.
8. 12 NCAC 09B .0404 entitled Trainee attendance states in pertinent part:
(a) Each trainee enrolled in a certified Basic Law Enforcement Training Course shall attend all class sessions. The school director shall monitor the trainee’s regular attendance at criminal justice training courses in which the trainee is enrolled.
(b) The school director may excuse a trainee from attendance at specific class sessions. However, in no case may excused absences exceed five percent of the total class hours for the course offering. A trainee shall not be eligible for administration of the state comprehensive examination and shall be dismissed from the course if the cumulative total of class absences exceeds five percent regardless of the prior completion of make-up work.
(c) If the school director grants an excused absence from a class session, he shall schedule make-up work and ensure the satisfactory completion of such work during the current course presentation. The school director shall schedule instructors and reimburse those instructors for the purpose of completion of the make up work. Absences which occur during the last forty hours of the training course may be made up in a subsequent delivery; however, the school director shall notify the Standards Division prior to scheduling the make up work.
9. 12 NCAC 09B .0405 entitled Completion of Basic Law Enforcement Training Course states in pertinent part:
(b) The trainee shall demonstrate proficiency in the school’s cognitive topical area tests by achieving a minimum score of 70 percent on each topical area test and shall also demonstrate proficiency in the motor skills and performance subjects:
(1) a trainee who fails to achieve a passing score on the first attempt shall have one opportunity for reexamination following remediation;
10. 12 NCAC 09B .0502 entitled Terms and Conditions of School Director Certification states in pertinent part:
(b) To retain certification as a school director, the school director shall:
. . . .
(2) Maintain and comply with the current version of the Basic Law Enforcement Training Course Management Guide;
(3) Maintain and ensure compliance with the current version of the Basic Law Enforcement Training Instructor Notebook assigned to each certified school[.]
11. 12 NCAC 09B .0205 entitled Basic Law Enforcement Training states in pertinent part:
(c) The Basic Law Enforcement Training Manual as published by the North Carolina Justice Academy shall be used as the basic curriculum for this basic training course for law enforcement officers as administered by the Commission. Copies of this publication may be inspected at the office of the agency:
Criminal Justice Standards Division
North Carolina Department of Justice
114 West Edenton Street
Old Education Building
Post Office Drawer 149
Raleigh, North Carolina 27602
and may be obtained from the Academy at the following address:
North Carolina Justice Academy
Post Office Drawer 99
Salemburg, North Carolina 28385
12. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0203(a) because two (2) students’ (William Tripp and Jessica Koonce) files did not contain proof of citizenship.
13. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0203(f) because the medical examination reports for six (6) students (William Jackson, Justin Gray, Ollen Raynor, Michael Turner, Casey Wiley, and Johnny Loveless) contained insufficient information to determine if the examining physician, physician’s assistant or nurse practitioner were licensed to practice medicine in North Carolina. Jackson’s Medical Examination Report did not include the fourth and final page containing the signature of the examining physician, physician’s assistant or nurse practitioner. Loveless’s Medical Examination Report did not include the signature of the examining physician, physician’s assistant or nurse practitioner.
14. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0203(g) because the files of two (2) students (Steven Pittman and Christopher Egge) did not contain a high school diploma or General Educational Development (GED) Test indicating high school equivalency from a recognized school or college.
15. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0203(h) because the JSCC application form requested only the student’s current address and last out-of-state address. The lack of adequate addresses prohibits Respondent from verifying if any of the 38 student files contained certified criminal records checks for local and state records for the time period since the trainee has become an adult and from all locations where the trainee has resided since becoming an adult.
16. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0202(a)(3) because he did not provide each instructor with a current Commission course outline and all necessary additional information concerning the instructor’s duties and responsibilities.
17. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0205(c) because he failed to provide the required The Basic Law Enforcement Training Manual as published by the North Carolina Justice Academy to Instructor West.
18. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0202(a)(4) because he failed to notify each instructor that they must comply with the Basic Law Enforcement Course Management Guide and failed to provide them access to the most current version of the Course Management Guide.
19. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0202(a)(5) because he failed to review each instructor’s lesson plans and other instructional materials for conformance to Commission standards and to minimize repetition and duplication of subject matter.
20. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0202(a)(6) because he failed to arrange for the timely availability of appropriate audiovisual aids and materials, publications, facilities, and equipment for training in all topic areas.
21. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0202(a)(9) because he failed to administer the course delivery in accordance with Commission procedures and standards, give consideration to advisory guidelines issued by the Commission, and ensure that the training offered is safe and effective.
22. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B.0202(b)(1) because he failed to deliver training in accordance with the most current version of the Basic Law Enforcement Training Course Management Guide as published by the North Carolina Justice Academy. Petitioner failed to ensure that the driving range was adequate in size and design to safely conduct the law enforcement basic recruit driving course.
23. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B.0201(f) because he failed to ensure that supplies and equipment for trainees are utilized during course delivery as specified in the Basic Law Enforcement Training Course Management Guide as referenced in 12 NCAC 09B.0205(d) because the Law Enforcement Driver Training block of instruction was not secured by barriers from thru traffic while training was being conducted on the range, the facility also did not have warning signs posted at all vehicle access points that shall clearly identify the area as a law enforcement training driving range and limit access to criminal justice trainees, criminal justice instructors, and personnel authorized by the school director.
24. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0202 (a)(10) because he failed to maintain direct supervision, direction, and control over the performance of all persons to whom any portion of the planning, development, presentation, or administration of a course has been delegated when Petitioner, while school director failed to follow the administrative code in many areas including: procuring of mandated equipment and videos, ensuring qualified instructors taught each block of instruction, ensuring specialized instructors had valid CPR certification, ensuring the firearms and driving courses were not double booked with other JSCC classes, ensuring make up work was required when students were absent, ensuring testing was done with integrity and without cheating, ensuring students who failed a test were provided proper remediation before being given a retest.
25. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0404(c) because he failed to schedule make-up work and ensure the satisfactory completion of such work during the current course presentation and failed to schedule instructors and reimburse those instructors for the purpose of completion of the makeup work.
26. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0202(b)(1) because he failed to deliver training in accordance with the most current version of the Basic Law Enforcement Training Course Management guide as published by the North Carolina Justice Academy.
27. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0202(a)(4) because he failed to notify each instructor that they must comply with the Basic Law Enforcement Course Management Guide and provide them access to the most current version of the Course Management Guide when Petitioner did not provide Coats with an instructor manual or the BLET CMG.
28. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0202(b)(3) because he failed to schedule only those instructors certified by the Commission to teach those high liability areas as specified in 12 NCAC 09B .0304(a) as either the lead instructor or in any other capacity because five (5) specialized instructors (Wagner Baskett, James Bateman, Lawrence Dixon, William Grantham, and David West) did not contain a current specialized instructor certification and/or current CPR certification.
29. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0202(b)(4) because he failed to schedule one specialized certified instructor certified by the Commission for each six trainees while actively engaged in a practical performance exercise because the ratio of specialized certified instructors to students during the Law Enforcement Driving block of instruction was one instructor for fourteen students.
30. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0202(a)(7)(B) because he failed to develop, adopt, reproduce, and distribute any supplemental rules, regulations, and requirements determined by the school to be necessary or appropriate for establishing responsibilities and obligations of agencies or departments employing or sponsoring course trainees.
31. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0202(b)(7)(B) because he failed to, not less than 15 days before commencing delivery of the Basic Law Enforcement Training Course, submit to the Commission a Pre-Delivery Report of Training Course Presentation as set out in 12 NCAC 09C .0211 along with the following attachments: a copy of any rules, regulations, and requirements for the school.
32. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0202(b)(8) because he failed to monitor, or designate an instructor certified by the Commission to monitor, the presentations of all instructors once during each three year certification period in each topic taught by the instructor and prepare written evaluations on their performance and suitability for subsequent instructional assignments when the file of Gary Sessoms did not contain written instructor evaluations prepared as required by the code within the past three (3) years for the Subject Control/Arrest Techniques block of instruction.
33. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0202(b)(9)(A) because he failed to administer or designate a staff person to administer appropriate tests as determined necessary at various intervals during course delivery to determine and record the level of trainee comprehension and retention of instructional subject-matter because a number of these tests were not administered or if they were administered and the student failed, remedial testing was not done.
34. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0203(e) because he failed to administer the reading component of a standardized test which reports a grade level for each trainee participating in the Basic Law Enforcement Training Course when 12 of the 38 student were not administered the reading component test no later than by the end of the first two weeks of a presentation of the Basic Law Enforcement Training Course.
35. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0404(a) because he failed to monitor the trainee’s regular attendance at criminal justice training courses in which the trainee is enrolled when 21 of the 38 students were absent a total of 50 days.
36. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0404(b) when he failed to ensure that excused absences did not exceed five percent of the total class hours for the course offering when two (2) students (Matthew Braswell and Isaiah Kennedy) accumulated absences which exceeded five percent of the total class offerings; however, they were not dismissed from the course. The BLET day class consisted of 622 hours and both Braswell and Kennedy missed four (4) days each of instruction (32 hrs.).
37. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0404(c) because he failed to schedule make up work and ensure the satisfactory completion of such work during the current course presentation when 21 students were absent from class on 50 days or portions thereof. The student files did not contain documentation of satisfactory completion of make-up work for 45 of these days due to insufficient record keeping. This information was gathered from students during interviews. Student comments support the fact that required makeup of absences was not done.
38. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0405(b)(1) because he failed to ensure that a trainee who fails to achieve a passing score on the first attempt shall have one opportunity for reexamination following remediation when 32 of the 38 students failed their initial end of block exams/practical skills exercises in one or more blocks of instruction. Of those 32 students, 21 did not receive remediation/retest in one or more blocks of instruction.
39. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0405 (b) because he failed to prohibit failure, remediation, and reexamination in no more than four topical area tests when two (2) students (Christopher Grady and Justin Gray) failed six (6) topical area tests and two (2) other students (Aaron Harrell and Lionel Spencer) failed eight (8) topical area tests before being dropped from the BLET program. Staff also discovered that one (1) student (Michael Murphy) failed five (5) topical area tests and was not dismissed from the BLET program.
40. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0502(b)(2) because he failed to maintain and comply with the current version of the Basic Law Enforcement Training Course Management Guide when Gary Sessoms and Brad Coats (JSCC administrative staff) were unable to produce a copy of the current version of the CMG.
41. A preponderance of the evidence showed that Petitioner violated 12 NCAC 09B .0502(b)(3) when he failed to maintain and ensure compliance with the current version of the Basic Law Enforcement Training Instructor Notebook.
Instructor Certification
42. 12 NCAC 09A .0203(5), entitled Sanctions for Violations by Individuals states, in pertinent part: When any person certified by the Commission is found to have knowingly and willfully violated any provision or requirement of these Rules, the Commission may take action to correct the violation and to ensure that the violation does not re-occur, including: (5) revoking or denying the individual’s certification.
43. 12 NCAC 09B .0301, entitled Minimum Standards for Criminal Justice Instructors states in pertinent part:
(a) Any person participating in a Commission-certified criminal justice training course or program as an instructor, teacher, professor, lecturer, or other participant making presentations to the class shall first be certified by the Commission as an instructor.
. . . .
(f) The Commission may deny, suspend, or revoke an instructor’s certification when the Commission finds that the person:
. . . .
(5) has demonstrated in the delivery of commission-mandated training, unprofessional personal conduct, defined as an act that is: conduct for which no reasonable person should expect to receive prior warning; job-related conduct which constitutes a violation of State or federal law; conviction or commission of a criminal offense as set out in 12 NCAC 09A .0204; the willful violation of Rules of this Chapter; conduct that is detrimental to instruction in the Commission’s mandated courses; the abuse of client(s), student(s) over whom the instructor has charge; or falsification of an instructor application or in other employment documentation[.]
. . . .
(8) has failed to meet or maintain good moral character as defined in: Re Willis, 299 N.C. 1, 215 S.E. 2d 771 appeal dismissed 423 U.S. 976 (9175); State v. Harris, 216 N.C. 746, 6 S.E. 2d 854 (1940); in Re Legg, 325 N.C. 658, 386 S.E. 2d 174(1989); in Re Applicants for License, 143 N.C. 1, 55 S.E. 635 (1906); in Re Dillingham, 188 N.C. 162, 124 S.E. 130 (1924); State v. Benbow, 309 N.C. 538, 308 S.E. 2d 647 (1983); and their progeny, as required to effectively discharge the duties of a criminal justice instructor[.]
44. A preponderance of the evidence showed that Petitioner lacked good moral character required for General and Specialized Instructors because Petitioner’s willingness to help BLET students cheat on end of block exams and Petitioner’s erasing of failing test scores and replacing of passing test scores reflects a pattern of a lack of good moral character for Petitioner to be an Instructor.
45. A preponderance of the evidence showed that Petitioner violated the Commission rules because he exhibits unprofessional personal conduct because Petitioner, while school director failed to follow the administrative code in many areas including: procuring of mandated equipment and videos, ensuring qualified instructors taught each block of instruction, ensuring specialized instructors had valid CPR certification, ensuring the firearms and driving courses were not double booked with other JSCC classes, ensuring make up work was required when students were absent, ensuring testing was done with integrity and without cheating, ensuring students who failed a test were provided proper remediation before being given a retest.
Law Enforcement Officer Certification
46. NCAC 09A .0204 entitled Suspension: Revocation: or Denial of Certification:
(b) 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:
(2) 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 or fails to meet or maintain one or more of the minimum training standards required by 12 NCAC 09B .0200 or 12 NCAC 09B .0400 for the category of the officer’s certification;
. . . .
(6) has knowingly made a material misrepresentation of any information required for certification or accreditation;
. . . .
(8) has knowingly and willfully, by any means of false pretense, deception, defraudation, misrepresentation or cheating whatsoever, aided another person in obtaining or attempting to obtain credit, training or certification from the Commission[.]
(c) Following suspension, revocation, or denial of the person's certification, the person may not remain employed or appointed as a criminal justice officer and the person may not exercise any authority of a criminal justice officer during a period for which the person's certification is suspended, revoked, or denied.
47. 12 NCAC 09A .0205, entitled Period of Suspension: Revocation: or Denial, states, in pertinent part:
(b) 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:
. . . .
(4) material misrepresentation of any information required for certification or accreditation; or
(5) obtaining, attempting to obtain, aiding another person to obtain, or aiding another person to attempt to obtain credit, training or certification by any means of false pretense, deception, defraudation, misrepresentation or cheating[.]
48. 12 NCAC 09B .0101(3), entitled Minimum Standards for Criminal Justice Officers, states in pertinent part: Every criminal justice officer employed by an agency in North Carolina shall: (3) be of good moral character pursuant to G.S. 17C-10 and as determined by a thorough background investigation[.]
49. A preponderance of the evidence showed that Petitioner knowingly made a material misrepresentation on his November 24, 1999 Personal History Statement Form F-3 for his application for certification with Surf City Police Department when he omitted that he was terminated from the Cumberland County Sheriff’s Office because of conduct unbecoming of an officer, and he omitted that he had differences in a business practice with two fellow employees.
50. A preponderance of the evidence showed that Petitioner knowingly made a material misrepresentation on his December 31, 1999 Mandated Background Information Form F-8 when he omitted that he was terminated from the Cumberland County Sheriff’s Office because of conduct unbecoming of an officer, and he omitted that he had differences in a business practice with two fellow employees.
51. A preponderance of the evidence showed that Petitioner knowingly made a material misrepresentation on his April 7, 2010 Personal History Statement Form F-3 for his application for certification with Parkton Police Department when he omitted that he was terminated from the Cumberland County Sheriff’s Office because of conduct unbecoming of an officer, and he omitted that he had differences in a business practice with two fellow employees.
52. A preponderance of the evidence showed that Petitioner aided or attempted to aid another person in obtaining credit, training or certification from the Commission in violation of rule 12 NCAC 09A .0204 (b)(8) when during testing, Petitioner pointed to an incorrect answer and say No, and read another answer and say yes, or he pointed to the correct answer and say nothing, indicating that answer was the correct answer.
53. A preponderance of the evidence showed that Petitioner lacked good moral character required of certified law enforcement officers in violation of 12 NCAC 09A .0204(b)(2) because of the facts and circumstances surrounding Petitioner’s misconduct as a school director, an instructor, and Petitioner’s misrepresentations on certification forms for certification form with the Parkton Police Department and Surf City Police Department.
54. The findings of the Probable Cause Committee of the Respondent are supported by substantial evidence.
55. 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. N.C.G.S. § 150B-29(a). The administrative law judge shall decide the case based upon the preponderance of the evidence. N.C.G.S. § 150B-34(a).
56. Respondent has the burden of proof to revoke or suspend Petitioner’s School Director certification and his General and Specialized Instructor Certification. Petitioner has the burden of proof concerning the denial of his Law Enforcement Officer Certification. Respondent showed that the probable cause committee properly revoked or suspended Petitioner’s School Director certification and Petitioner’s General and Specialized Instructor Certification. 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.
PROPOSAL FOR DECISION
NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends Respondent Commission suspend Petitioner's School director certification for a period not less than five years pursuant to 12 NCAC 09B. 0503(a), which provides that Respondent may deny, suspend or revoke certification of a school director when Respondent finds that the person has failed to meet or continuously maintain any of the requirements for qualification or through performance fails to comply with program rules and procedures of Respondent or otherwise demonstrates incompetence.
Suspend Petitioner's general and specialized instructor certifications for a period of not less that five years pursuant to 12 NCAC 09A.0203(5), which provides that respondent may revoke or deny an individual's certification when respond finds that the person has knowingly and willfully violated any provision or requirements of the rules.
Suspend Petitioner's general and specialized instructor certifications indefinitely based on a finding that Petitioner has failed to meet or maintain good moral character, as required to effectively discharge the duties of a criminal justice instructor, and pursuant to 12 NCAC 09G. 0307(f)(4) based on respondent's finding that Petitioner has demonstrated unprofessional personal conduct in the delivery of Commission- mandated training.
Suspend Petitioners law enforcement certification for a period of not less that five years upon a finding that Petitioned knowingly made a material misrepresentation of any information required for certification or accreditation and upon a finding that Petitioner knowing and willfully, by any means of false pretense, deception, defraudation, misrepresentation or cheating whatsoever, aided another person in obtaining or attempting to obtain credit, training or certification from the Commission.
Suspend Petitioner's law enforcement certification indefinitely upon a finding that Petitioner lacks the good moral character required pursuant to 12 NCAC 09B .0101(3) to hold certification as a law enforcement officer in North Carolina.
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 Criminal Justice Education and Training Standards Commission.
This the 27th day of April, 2012.
Administrative Law Judge
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