STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF MECKLENBURG |IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

10 DOJ 0722 | |

| | | |

|Chad Aaron Webster, |) | |

|Petitioner, |) | |

| |) | |

|v. |) |PROPOSAL FOR DECISION |

| |) | |

|North Carolina Criminal Justice Education and Training Standards |) | |

|Commission, |) | |

|Respondent. |) | |

On August 2, 2010, Administrative Law Judge J. Randall May, 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: Richard L. Hattendorf, Attorney at Law

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

ISSUE

Is Respondent’s proposed suspension of Petitioner’s criminal justice officer certification supported by a preponderance of the evidence?

FINDINGS OF FACT

The Findings of Fact are made after careful consideration of the sworn testimony, whether visual and/or audio, of the witnesses presented at the hearing, and the entire record in this proceeding. In making the findings of fact, the undersigned 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 all other believable evidence in the case. From the sworn testimony and the admitted evidence, or the lack thereof, the undersigned makes the following:

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 Suspension of Law Enforcement Officer Certification letter mailed by Respondent Criminal Justice Commission on January 15, 2010.

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

3. 12 NCAC 9A .0204(b)(13) 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 has produced a positive result on a drug screen reported to the Commission as specified in 12 NCAC 9C .0310, where the positive result cannot be explained to the Commission’s satisfaction.

4. 12 NCAC 9C .0310(b) provides that each agency, if it conducts a drug screen for in-service officers, shall report in writing positive results or refusals to submit to an in-service drug screening to the Criminal Justice Standards Division within thirty (30) days of the positive result or refusal unless the positive result has been explained to the satisfaction of the agency’s medical review officer to the extent the drug screen conducted conforms to the specifications of 12 NCAC 9B .0101(5)(a), (b), (c), (d), and (f).

5. 12 NCAC 9B .0101(5)(a), (b), (c), (d), and (f) provides that drug screens shall be a urine test consisting of an initial screening test using an immunoassay method and a confirmatory test on an initial positive result using a gas chromatography/mass spectrometry (GC/MS) or other reliable initial and confirmatory test as may, from time-to-time, be authorized or mandated by the Department of Health and Human Services for federal workplace drug testing programs and a chain of custody must be maintained on the specimen from collection to the eventual discarding of the specimen. Further, the drug screen shall test for the presence of at least cannabis, cocaine, phencyclidine (PCP), opiates and amphetamines or their metabolites. Additionally, the test threshold values must be those established by the Department of Health and Human Services for federal workplace drug testing programs and the laboratory conducting the test must be certified for federal workplace drug testing programs.

6. The Petitioner was appointed as a full-time police officer through the Charlotte-Mecklenburg Police Department on August 15, 2002. Petitioner thereafter received his certification as a criminal justice officer through the Commission on September 30, 2002.

7. By letter dated October 19, 2009, staff for the Commission was notified by Major T. J. Danchess of the Internal Affairs Division of the Charlotte-Mecklenburg Police Department that the Petitioner provided a urine sample on August 13, 2009, which tested positive on a random drug screen for Propoxyphene, a prescription medication that was not prescribed to him. Petitioner’s urine sample tested positive for Propoxyphene in the amount of 1,045 ng/ml.

8. Propoxyphene is a prescription medication commonly used for treating mild to moderate pain. It is a synthetic opioid analgesic, similar to methadone. Common brand names for Propoxyphene include Darvocet and Wygesic. Propoxyphene is a schedule II controlled substance.

9. Subsequent to his positive urinalysis test, Petitioner was interviewed by the Internal Affairs Division of the Charlotte-Mecklenburg Police Department. Petitioner admitted during these interviews that he had taken multiple Darvocet and Wygesic pills, which had been prescribed, to his wife. Petitioner stated that he took approximately fifteen Darvocet pills over a five month period between March and August 2009. Petitioner claimed that he took these medications for relief of knee pain and trouble sleeping. Petitioner also admitted to taking approximately two Wygesic pills for the same condition.

10. The internal affairs investigation into Petitioner’s positive urinalysis test concluded that the drug detection times in urine for Propoxyphene vary from three to seven days. Petitioner’s conduct, in addition to being in violation of federal and state controlled substance laws, is in violation of Charlotte-Mecklenburg Rule of Conduct 18A, which prohibits the possession and use of prescription medications not prescribed to the officer.

11. After receiving notice of Petitioner’s positive urinalysis test result, staff for the Commission requested the complete internal affairs investigation from the Charlotte-Mecklenburg Police Department. This investigation, dated August 25, 2009, was sent to the Commission and contained a verbatim interview of the Petitioner. During this interview, the Petitioner admits that his actions in taking prescription medication belonging to his wife constituted a violation of the Charlotte-Mecklenburg Rule of Conduct 18A for the improper possession and use of drugs. Petitioner further stated during this interview that he never thought to get a prescription for pain from his personal physician. He stated this was because the pain was so intermittent.

12. Staff for the Commission also requested the Petitioner submit a statement of explanation concerning his positive urinalysis test. In a statement dated November 23, 2009, Petitioner stated that he began taking self-defense classes in February of 2009. Thereafter, he had periodic pain in his knees and shins. Petitioner went on to state that his wife, Krista, recently had knee surgery and had been prescribed Darvocet and Wygesic pills for her knee pain. He stated that his wife offered her pain medication to him. Petitioner, in the statement, admitted to taking approximately twelve to fifteen pills of Darvocet and “a couple” of Wygesic pills to relieve his pain and allow him to sleep. Petitioner stated that he took these pills typically before bed. Petitioner states that he did not know that his use of prescription medication not prescribed to him constituted a crime.

13. Petitioner stated that subsequent to his positive urinalysis test, he has since seen a physician for his pain. Petitioner stated that his physician diagnosed him as having shin splints and the physician prescribed to him an anti-inflammatory and instructed him to take extra strength Tylenol or Advil for the pain. Petitioner’s physician did not prescribe a controlled painkiller, such as Propoxyphene, to Petitioner.

14. Petitioner’s urine sample was tested by Advanced Toxicology Network, a laboratory certified by the United States Department of Health and Human Services to conduct federal workplace drug testing. Advanced Toxicology Network reported Petitioner’s urine sample to be positive for the presence of Propoxyphene.

15. The drug screen conducted on Petitioner’s urine sample was administered in accordance with the procedures authorized and mandated by the United States Department of Health and Human Services for federal workplace drug testing programs. The United States Department of Health and Human Services require that the initial screen test of Petitioner’s urine be conducted using the immunoassay method, and the confirmation test on Petitioner’s urine sample be conducted using the gas chromatography/mass spectrometry (GC/MS) method of testing. This positive result for Propoxyphene in Petitioner’s urine revealed a level of Propoxyphene above the threshold established for a screen and confirmation test conducted in accordance with the standards established by the United States Department of Health and Human Services for federal workplace drug testing programs.

16. The purpose of the initial screen and the GC/MS test is to conduct a quantitative analysis of the amount of controlled substance in an individual’s urine. The amount tested is measured in terms of nannograms per milliliter (ng/ml) of the substance in the urine. The testing process is conducted such that there is a screen cutoff level and a confirmation cutoff level for the test. If either the initial screen or the confirmation test reports a level of the substance below the cutoff amount, then the sample will be reported as negative. The current cutoff adopted by the United States Department of Health and Human Services is 300 ng/ml for Propoxyphene as a screen cutoff and 200 ng/ml for the confirmation cutoff level. The purpose of this cutoff limit is to prevent any possibility of a small trace amount of the illicit drug, Propoxyphene in this case, from being reported as positive if it is detected in the person’s system. Petitioner’s sample tested at 1045 ng/ml.

17. It was stipulated by the parties that there was no flaw in the chain of custody for Petitioner’s urine sample. The parties further stipulated that the test of Petitioner’s sample was accurate and conducted in accordance with the Commission’s rules.

18. Subsequent to the Petitioner testing positive for Propoxyphene on his drug screen, the Petitioner was contacted by Dr. Charlton Owensby, a certified Medical Review Officer, to determine if there was a legitimate explanation for Petitioner’s positive urinalysis test result for Propoxyphene. Petitioner admits to the use of Propoxyphene by taking this prescription medication from his spouse. At the time of his use, Petitioner did not have a physician prescription for the substance.

19. Petitioner is 36 years old; a high school graduate; and has completed Basic Law Enforcement Training through the Charlotte-Mecklenburg Police Department. Since his employment with Charlotte-Mecklenburg, Petitioner has served in the position of a patrol officer. Petitioner admitted at the administrative hearing that he did not research the side affects of Darvocet or Wygesic before taking them. Petitioner stated that after his first dosage of Darvocet, it had the effect of relieving his pain. Petitioner continued to take, in his estimation, approximately fifteen Darvocet pills and two Wygesic pills, between March and August 2009. Petitioner never consulted a physician to obtain his own prescription of these medications during this five-month period. Petitioner admits that he knew that these substances were controlled and that an individual must have a prescription in order to possess them.

20. Petitioner only sought to consult with a physician after his positive urinalysis test result. Petitioner has one prior disciplinary infraction with the Charlotte-Mecklenburg Police Department, that being when he missed a CPR recertification class. As a result of Petitioner’s positive urinalysis test, the Charlotte-Mecklenburg Police Department suspended the Petitioner for two days. Petitioner testified that, despite having completed Basic Law Enforcement Training and a class on the policies and procedures of the Charlotte-Mecklenburg Police Department, he did not know that his use of a prescription medication not prescribed to him was in violation of either state or federal law or in violation of the code of conduct of the Charlotte-Mecklenburg Police Department. Petitioner however stated that he “should have known” that this use was in violation of law. Since Petitioner’s positive urinalysis test result from his August 13, 2009 sample, he has submitted to two additional urinalysis tests. These tests, from October 2009 and March 2010, have been negative for unlawful substances.

21. Petitioner’s spouse, Krista Webster, testified that she is a former sworn Charlotte-Mecklenburg police officer. As a result of an automobile accident, she suffered an injury to her knees, which resulted in her leaving the police department. Krista subsequently had surgery on her knees due to the injury. While in physical therapy for her knees, Krista was prescribed Darvocet for knee pain. She stated this would have been for the one-year period of June 2008 through June 2009. Krista’s last prescription for Darvocet was filled in April 2009 for thirty tablets.

22. Krista previously has given birth to twins. As a result of her current pregnancy, her ribs were dislocated. In order to treat this pain, Krista was prescribed Wygesic in approximately February 2009. Krista’s last prescription for Wygesic was in April 2009. Krista testified that based on her training and experience as a patrol officer with the Charlotte-Mecklenburg Police Department, she knew it was a violation of state and federal law and the code of conduct for the Charlotte-Mecklenburg Police Department for officers to take a prescription drug which was not prescribed to them. Despite this knowledge, she knowingly gave this medication repeatedly to Petitioner between March and August 2009.

23. Major Diego Anselmo has been employed for twenty years with the Charlotte-Mecklenburg Police Department. Major Anselmo supervises approximately 300 patrol officers including the Petitioner. He described the Petitioner as an exceptional officer and he uses the Petitioner to train newer officers. Major Anselmo testified that, while Petitioner’s code violation was sustained, his two-day suspension was based on Petitioner’s prior good work history and experience. Major Anselmo testified that he would like for the Petitioner to continue as an officer with the Charlotte-Mecklenburg Police Department. This was also the opinion of the Charlotte-Mecklenburg Chief of Police. The Charlotte-Mecklenburg Police Department trains its officers on its code of conduct, which would include prohibiting the use of prescription medication not prescribed to the officer. Further, officers with the Charlotte-Mecklenburg Police Department would be trained that the use of prescription medication not prescribed to a person would be in violation of state and federal law.

24. Petitioner’s explanation that he did not know his use of Darvocet and Wygesic were in violation of state or federal law and the code of conduct of the Charlotte-Mecklenburg Police Department is not credible. Petitioner has been a sworn law enforcement officer for eight years. Further, Petitioner’s wife, who has been through the same training as Petitioner, testified that she was aware that the use of prescription medication not prescribed to an individual is in violation of law and the police department code of conduct.

25. Petitioner admits that he should have known that his conduct was in violation of the law and the Charlotte-Mecklenburg code of conduct. Equally as disturbing is Petitioner’s continued use of the drugs. Petitioner admits to first taking Darvocet in approximately March 2009. Petitioner testified that his first dosage of this drug relieved his pain. Instead of immediately seeking out a physician and his own prescription for this painkiller, Petitioner continued to take approximately seventeen dosage units of Propoxyphene over the next five months. Petitioner’s use of Propoxyphene stopped only after he tested positive for this drug in a random urinalysis test. Only after this positive result, did Petitioner seek out the services of a physician. Interestingly, the physician declined to prescribe pain medication.

BASED UPON the foregoing FINDINGS OF FACT and upon the preponderance or greater weight of the evidence in the whole record, the undersigned makes the following:

CONCLUSIONS OF LAW

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

2. Petitioner tested positive for the controlled substance Propoxyphene on his August 13, 2009 urine sample. The testing of Petitioner’s sample was conducted in accordance with the standards set forth in 12 NCAC 9B .0101(5), (a), (b), (c), (d), and (f).

3. Petitioner’s positive urinalysis test result for Propoxyphene is in violation of 12 NCAC 9A .0204(b)(13). The Commission’s proposed suspension of Petitioner’s law enforcement officer certification is supported by a preponderance of the evidence.

4. Pursuant to 12 NCAC 9A .0205(b)(3), the period of sanction for a violation of 12 NCAC 9A .0204(b)(13), shall be not less than five years. The Commission may however, in its discretion, lessen or reduce this period of sanction.

PROPOSAL FOR DECISION

It is the belief of the undersigned that great consideration should be given to the past exemplary work history of this veteran police officer. However, Petitioner’s live testimony regarding his lack of knowledge of controlled substances for which he tested positive lacked the air of credibility that is required by someone of his position.

Nevertheless, based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that Respondent suspend Petitioner’s law enforcement officer certification for a period of one week. The undersigned further recommends that this period of suspension be suspended, and that Petitioner should receive a term of probation for one year with additional requirements as follows:

1. That he violate no criminal law;

2. That he obtain remedial training (at his personal expense) regarding the laws and the identification of controlled substances, related paraphernalia and precursors, as they are defined in the North Carolina General Statutes, Chapter 90;

3. That he receive a minimum of two random drug tests; and

4. That he pay a civil fine of two thousand ($2,000.00) dollars. This sum shall be satisfied upon a donation made by the Petitioner to Charlotte-Mecklenburg Crime-Stoppers, a non-profit 501(c)(3) agency, or another suitable law enforcement related charity of his choosing within thirty (30) days of the Commission’s Final Decision.

NOTICE AND ORDER

The North Carolina Criminal Justice Education and Training Standards Commission is the agency that will make the Final Decision in this contested case. As the final decision-maker, that agency is required to give each party an opportunity to file exceptions to this proposal for decision, to submit proposed findings of fact, and to present oral and written arguments to the agency pursuant to N.C. Gen. Stat. § 150B-40(e). It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance with N.C. Gen. Stat. § 150B-36(b).

This the 4th day of October, 2010.

J. Randall May

Administrative Law Judge

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

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

Google Online Preview   Download