STATE OF NORTH CAROLINA



|STATE OF NORTH CAROLINA |IN THE OFFICE OF |

| |ADMINISTRATIVE HEARINGS |

|COUNTY OF IREDELL |10 DOJ 2373 |

|Tony Harold Shelton, |) |

|Petitioner, |) |

|v. |) PROPOSAL FOR DECISION |

|NC Sheriffs’ Education and Training Standards Commission, |) |

|Respondent. |) |

| |) |

On August 2, 2010, Administrative Law Judge Selina M. Brooks heard this case in Charlotte, 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: J. Brantley Ostwalt, Jr.

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

ISSUE

Did Petitioner knowingly make a material misrepresentation of any information required for certification as a justice officer by the North Carolina Sheriffs’ Education and Training Standards Commission and did Petitioner knowingly make a material misrepresentation of the information required for certification as a criminal justice officer by the North Carolina Criminal Justice Education and Training Standards Commission?

FINDINGS OF FACT

1. Both parties properly are before this administrative law judge, in that jurisdiction and venue are proper, that both parties received notice of hearing, and that Petitioner received by certified mail the proposed Denial of Justice Officer Certification letter mailed by Respondent Sheriffs’ Commission on April 5, 2010.

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

3. 12 NCAC 10B .0204(c)(1) and (2) states that the Sheriff’s Commission may deny certification as a justice officer when the Commission finds that the applicant has (1) knowingly made a material misrepresentation of any information required for certification or accreditation from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission; or (2) has knowingly and designedly by any means of false pretense, deception, defraud, misrepresentation, cheating whatsoever, obtained or attempted to obtain credit, training or certification from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission.

4. The Petitioner was appointed as a deputy sheriff through the Iredell County Sheriff’s Office on May 4, 2009. The Petitioner signed this Report of Appointment form on May 4, 2009 below an attestation which reads, in pertinent part, “I further understand and agree that any omission, falsification, or misrepresentation of any fact or portion of such information may be the sole basis for termination of my employment and/or denial or revocation of my certification at any time; now or later.”

5. The Petitioner completed a Personal History Statement (Form F-3), on or about May 4, 2009, as part of his employment application with the Iredell County Sheriff’s Office in order to obtain certification as a justice officer from the Commission. The attestation above the Petitioner’s signature on this form reads, in pertinent part, “I hereby certify that each and every statement made on this form is true and complete and understand that any misstatements or omission of information may subject me to disqualification or dismissal.” The Petitioner acknowledged that he read the Report of Appointment and Personal History Statement forms prior to signing them.

6. Question Number 42 of the Form F-3 asks the applicant to divulge his/her criminal offense record. Specifically, the question indicates:

Include all offenses other than minor traffic offenses. The following are

not minor traffic offenses and must be listed below: DWI, DUI (alcohol

or drugs), failure to stop in the event of an accident (hit and run) and driving while license or permanently revoked or permanently surrendered

(DWLR).

If any doubt exists in your mind as to whether or not you were arrested or

charged with a criminal offense at some point in your life or whether an

offense remains on your record; you should answer “Yes”. You should

answer “No”, only if you have never been arrested or charged, or your record has been expunged by a judge’s court order.

7. When the Petitioner completed this Personal History Statement, dated May 4, 2009, he listed in response to Question 42 that he had been charged in 1997 with “affray/assault” by the Charlotte Police Department and this charge was dismissed by the District Attorney. Petitioner also indicated that he had been charged with underage possession of alcohol in 1992 by the Western Carolina University Campus Police for which he paid a fine and court costs. Petitioner listed a third criminal offense of underage possession of alcohol from 1989, for which he again paid a fine and court costs. The Petitioner listed no other offenses.

8. When the Petitioner completed this Personal History Statement for his employment through the Iredell County Sheriff’s Office, Petitioner indicated that he had previously used a last name of “Gunn.” Petitioner also indicated that he had previously resided in Jackson County, North Carolina while attending Western Carolina University. The computerized criminal history records submitted to the Commission on behalf of the Petitioner did not include a criminal history check of the Petitioner from Jackson County under the name of Gunn.

9. A computerized criminal history record from the criminal history records maintained by the Administrative Office of the Courts from Jackson County, North Carolina on the Petitioner under the name “Tony Gunn” reveals that the Petitioner was charged in Jackson County on January 15, 1992 with the criminal offense of simple assault. This criminal history record also reveals that the Petitioner was later convicted of this criminal offense on February 10, 1992. This criminal history record was received by the Commission staff on November 24, 2009.

10. When the Petitioner’s application for certification through the Iredell County Sheriff’s Office was received by the Commission, staff inquired to see if the Petitioner had previously held certification through the North Carolina Criminal Justice Education and Training Standards Commission. In performing this check, it was determined that the Petitioner had previously held certification as a police officer with the Fayetteville Police Department and with the Mooresville Police Department. As a standard operating procedure when such previous certifications are discovered, Commission staff retrieved the previous Report of Appointment/Application for Certification forms (Form F-5A (LE)) submitted by the Petitioner for his certification as a police officer through the Criminal Justice Commission and compared these Reports of Appointment forms to the May 4, 2009 Personal History Statement completed by the Petitioner through the Iredell County Sheriff’s Office. It is noted that the Criminal Justice Commission does not maintain copies of Personal History Statements completed for certification through police departments, but rather only maintains the Report of Appointment forms. This comparison disclosed that the Petitioner did not reveal his 1992 conviction for assault under the name of “Gunn” on either of his Reports of Appointment forms for the Fayetteville Police Department or his Report of Appointment form for the Mooresville Police Department.

11. Petitioner was first appointed as a police officer with the Fayetteville Police Department in 1998. The Petitioner completed a Report of Appointment/Application for Certification form (Form F-5A (LE)) on July 30, 1998. In the attestation above the Petitioner’s name the form reads, in pertinent part, “I further understand and agree that any omission, falsification, or misrepresentation of any factor or portion of such information can be the sole basis for termination of my employment and/or denial, suspension or revocation of my certification at any time, now or later.” In response to a portion of this form requiring the Petitioner to list any and all criminal charges against him, regardless of the date of offense and the disposition, only one criminal offense was listed, that being an assault and battery charge from Mecklenburg County, North Carolina which was voluntarily dismissed on December 4, 1997. The Petitioner separated from the Fayetteville Police Department on November 17, 2003.

12. Between 2003 and 2006, the Petitioner worked overseas for a government contractor. On November 6, 2006, the Petitioner again completed a Report of Appointment form for his reappointment with the Fayetteville Police Department. The Petitioner again signed this form with the attestation that he agreed and understood that any omission, falsification or misrepresentation of any portion of required information could be the sole basis for his termination and/or denial or suspension of his certification. In response to the block on this form requiring the Petitioner to again list all of his criminal charges, the Petitioner on this occasion listed the criminal offense of underage possession of alcohol on the campus of Western Carolina University on November 30, 1992. The Petitioner also listed another charge of underage possession of alcohol in Cumberland County on January 26, 1989 and a third criminal offense of assault occurring in Charlotte, North Carolina, on September 26, 1997.

13. The Petitioner also completed a Criminal Justice Commission Personal History Statement form (Form F-3) in addition to this Report of Appointment form. The Petitioner did not disclose on this 2006 Personal History Statement that he had been charged in 1992 on the campus of Western Carolina University with possession of an alcoholic beverage on unauthorized premises. When this discrepancy was noted by staff for the North Carolina Criminal Justice Commission, the Petitioner was required to complete a statement explaining this discrepancy. In a statement received by the Criminal Justice Commission on November 20, 2006, the Petitioner explained his omission of the offense from Western Carolina University by stating that he believed this charge to be a violation of campus rules and not an “official state charge.” The Petitioner went on to explain in this statement that he was aware of the charge because the offense appeared on his criminal history record check in 2004 when the Petitioner underwent a national security clearance criminal history background check for his employment as a government contractor overseas. This criminal offense was in the name of Tony Shelton. Subsequently, the Criminal Justice Commission declined to take action against the Petitioner’s certification based on this omission. Petitioner again separated from the Fayetteville Police Department on November 3, 2007.

14. Petitioner completed another Report of Appointment form for his employment with the Mooresville Police Department on September 21, 2007. On this form, the Petitioner again listed the 1989 underage possession of alcohol offense, a 1992 underage possession of alcohol offense, and the 1997 assault charge. The Petitioner signed this form with the same attestation as the previous Reports of Appointment forms for the Fayetteville Police Department. Petitioner separated from the Mooresville Police Department on February 2, 2008.

15. The Petitioner did not list his 1992 conviction for assault under the name of Tony Gunn on either his 1998 or 2006 Report of Appointment forms submitted in furtherance of his Applications for Certification with the Criminal Justice Commission through the Fayetteville Police Department. Similarly, the Petitioner did not list his 1992 conviction for assault under the name of Tony Gunn when he completed his Report of Appointment form submitted in furtherance of his Application for Certification with the Criminal Justice Commission through the Mooresville Police Department in 2007.

16. Certified criminal histories reveal the Petitioner was charged under the name of Tony Harold Shelton on September 26, 1997 in Charlotte, North Carolina for the offense of assault and battery allegedly occurring on that same date. This criminal charge was voluntarily dismissed on December 4, 1997.

17. Petitioner was also charged under the name of Tony Harold Shelton on October 31, 1992 for the criminal offense of possession of an alcoholic beverage on unauthorized premises. The offense date was October 31, 1992. On December 1, 1992, Petitioner pled guilty and was found guilty by way of a clerk’s waiver for this offense. The complainant for this charge was named “Shular”, the same name used by a law enforcement officer with the Western Carolina University Campus Police who charged Petitioner with the criminal offense of simple assault under the name of Tony Harold Gunn.

18. Petitioner was charged on January 15, 1992 under the name of Tony Harold Gunn with the criminal offense of simple assault by Officer G. Shular of the Western Carolina University Campus Police. This offense was alleged to have occurred on December 16, 1991. The Petitioner, on February 10, 1992, pled guilty to this offense and subsequently received a Prayer for Judgment Continued for this offense. Petitioner paid court costs in the amount of $55.00. The complainant for this offense was Brad Greer.

19. Petitioner was also charged on January 26, 1989 under the name of Tony Harold Shelton with the criminal offense of underage possession of alcohol. This offense was alleged to have occurred on January 26, 1989. The Petitioner pled guilty to this offense on February 9, 1989.

20. Petitioner was asked by the Sheriff’s Commission staff to explain his omission of the 1992 assault charge under the name of Tony Gunn from his Iredell County Personal History Statement and the previous Reports of Appointment forms for the Fayetteville Police Department and the Mooresville Police Department. Petitioner responded in a statement, dated December 3, 2009, stating that he did not know that the 1992 assault charge “was an official state charge.” Petitioner stated that the incident occurred while he was attending Western Carolina University. Petitioner stated that he and a group of people were standing in front of his dormitory. He stated that several people, including him, were roughhousing, laughing and joking. He stated that he placed a person in a headlock and rubbed his head with his knuckles. He went on to explain that several weeks later, he was contacted by a campus security officer and Petitioner gave his explanation of what happened. Weeks later, Petitioner stated that he met with the complainant and the complainant’s father at the Silva North Carolina courthouse. Petitioner acknowledges that he did not discuss this 1992 incident with anyone at the Fayetteville Police Department, Mooresville Police Department, or the Iredell County Sheriff’s Office.

21. Petitioner testified at the administrative hearing that he was registered at Western Carolina University under the name of Shelton in 1992. He stated that his driver’s license and student identification were also in the name of Shelton. Petitioner stated however that he often used the name of Gunn out of respect for his stepfather. Petitioner testified that he played football at Western Carolina University and had the name Gunn on the back of his jersey.

22. As to the 1992 charge, Petitioner testified that he and two friends were in front of his dormitory on December 16, 1991 and wanted to go to a Hardee’s restaurant. Petitioner yelled at the victim/complainant (Brad Greer) and told him to take them to Hardee’s. When Greer refused, Petitioner placed Greer in a headlock and rubbed his knuckles on Greer’s head. Petitioner testified that approximately three weeks later, he was contacted by an official from the Western Carolina security office. Petitioner testified that he did not know this individual was a law enforcement officer and that this person asked Petitioner to accompany him back to the Western Carolina University Security Police office. Petitioner stated that he rode with this individual in the front seat of the car and that the car did not appear to be a police vehicle. Petitioner denied giving this individual the name of Gunn. Petitioner stated that a couple of weeks after this encounter he received a telephone call and was told to meet Greer and Greer’s father at the Silva, North Carolina courthouse. Petitioner stated that he met these individuals and another person in a suit (who he assumes was an assistant district attorney) in either a hallway or a meeting room. Petitioner recalls apologizing to the victim. Petitioner claims that he has no recollection of being charged with a criminal offense or the disposition of this offense. Petitioner testified however that he has never forgotten this episode of his life.

23. Petitioner’s explanation for not listing the 1992 assault charge from Jackson County was that he believed the offense was a “school violation” and not a criminal charge. It is noted that the Petitioner’s previous charge and conviction for possession of an alcoholic beverage on an unauthorized premises in 1992 involved the same Western Carolina University officer. When Petitioner’s omission of this alcohol charge from his 2006 Criminal Justice Commission Report of Appointment form was questioned by the Criminal Justice Commission, Petitioner again offered the explanation that he did not believe this was a criminal charge because it occurred on school grounds. Petitioner testified that he found out in 2006 that the 1992 Western Carolina University alcohol charge was indeed a criminal charge.

24. Petitioner’s explanation as to his omission of the 1992 assault charge in Jackson County is not credible. Petitioner completed Basic Law Enforcement Training in 1997 which instructed him on the manner in which criminal charges are brought against a defendant and the manner in which criminal charges are disposed of through the court system. Petitioner, because of his absence from law enforcement between 2003 and 2006, undertook another partial delivery of Basic Law Enforcement Training in 2007. Petitioner has served as a law enforcement officer since 1998 and has a college degree in criminal justice which further discussed the criminal justice system. A person with Petitioner’s training and experience should have known that the assault incident from 1992 was processed as a criminal charge. Moreover, in 1992, the Petitioner had to meet with campus security officials concerning his assault on Greer. Several weeks after this meeting, Petitioner had to go to the Jackson County District Court in Silva, North Carolina and meet with the victim, the victim’s father, and an individual who the Petitioner believes to be an assistant district attorney. It would not be logical to assume that the altercation from December 16, 1991 would be a school violation when it was resolved at the courthouse in Jackson County. The belief that the 1992 assault was a criminal charge would be further reinforced by Petitioner’s experience in 2006 concerning the possession of an alcoholic beverage charge on unauthorized premises. Despite Petitioner’s assertion that this alcohol offense was also a school violation, it was resolved through the Jackson County court system. Petitioner then had to explain this omission before the Criminal Justice Commission in 2006. Petitioner then knew this asserted “school” alcohol violation was a criminal charge. Similarly, Petitioner would know the 1992 assault charge was processed as a criminal matter. A preponderance of the evidence exists to conclude the Petitioner knew that the 1992 conviction for assault in Jackson County under the name of Tony Gunn was a criminal charge. The Petitioner had an obligation to list this criminal charge on his Iredell County Personal History Statement and all three of his Reports of Appointment forms to the Fayetteville Police Department and the Mooresville Police Department.

25. The Commission has found that honesty and integrity are essential attributes to be a justice officer in North Carolina. Indeed, the Commission has adopted honesty and integrity as an essential job function.

CONCLUSIONS OF LAW

1. The parties properly are before the undersigned administrative law judge and jurisdiction and venue are proper.

2. Petitioner knowingly made a material misrepresentation of information required for certification by failing to disclose his 1992 criminal charge and conviction from Jackson County, North Carolina for simple assault under the name of Tony Gunn from his May 4, 2009 Iredell County Sheriff’s Office Personal History Statement. Petitioner also made material misrepresentations when he omitted this same charge from his July 30, 1998 Fayetteville Police Department Report of Appointment form, his November 6, 2006 Fayetteville Police Department Report of Appointment form, and his September 21, 2007 Mooresville Police Department Report of Appointment form.

3. The Petitioner’s omissions referenced in Conclusion of Law number two constitute a violation of 12 NCAC 10B .0204(c)(1) and (2). The Respondent’s proposed denial of the Petitioner’s application for certification is supported by a preponderance of the evidence.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends the Respondent deny the Petitioner’s Justice Officer certification application for a period of five years.

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 and to present written arguments to the agency that will make the final decision or order. N.C. Gen. Stat. § 150B-36(a). The agency is required by N.C. Gen. Stat. § 150B-36(b3) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.

The agency that will make the final decision in this contested case is the North Carolina Sheriffs’ Education and Training Standards Commission.

This the 31st day of August, 2010.

__________/s/__________________________

Selina M. Brooks,

Administrative Law Judge

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

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

Google Online Preview   Download