STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF AVERY

KRISTOPHER ADAM VANCE, )

)

Petitioner )

)

v. ) )

)

NORTH CAROLINA SHERIFFS' )

EDUCATION AND TRAINING )

STANDARDS COMMISSION, )

)

Respondent )

__________________________________

IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

11 DOJ 2020

PROPOSAL FOR DECISION

On July 6, 2011, Administrative Law Judge Donald W. Overby, heard this case in Waynesville, North Carolina. This case was heard pursuant to N.C.G.S. § 150B-40(e), after Respondent requested the designation of an administrative law judge to preside at the hearing of a contested case under Article 3A, Chapter 150B of the North Carolina General Statutes.

APPEARANCES

Petitioner: Pro se

Respondent: John J. Aldridge, Special Deputy Attorney General

ISSUE

Did Petitioner knowingly make a material misrepresentation of any information required for certification as a justice officer to the North Carolina Sheriffs' Education and Training Standards Commission?

FINDINGS OF FACT

1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, both parties received notice of hearing, and the Petitioner received by certified mail, the proposed denial of justice officer certification letter, mailed by Respondent Sheriff's Commission on January 4, 2011.

2. The North Carolina Sheriffs' Education and Training Standards Commission (hereinafter Sheriffs' 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 Sheriffs' Commission may deny or revoke the certification of 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) knowingly and designedly by any means of false pretense, deception, defraud, misrepresentation, or cheating whatsoever, obtained or attempted to obtain credit, training or certification from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission.

4. The Petitioner was appointed as a corrections officer through the North Carolina Department of Correction on April 7, 2008. The Petitioner was submitted for certification as such to the North Carolina Criminal Justice Education and Training Standards Commission. The Petitioner completed a Report of Appointment form (Form F-5A (DOC) and signed it under oath on April 7, 2008. The Petitioner signed this form 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 can be the sole basis for termination of my employment and/or denial, suspension or revocation of my certification at any time.” Petitioner was asked in Question No. 3 of this same form, “Have you ever used any illegal drugs?” to which the Petitioner responded “No.”

5. Petitioner was appointed as a deputy sheriff through the Avery County Sheriff's Office on March 24, 2010. The Petitioner signed a Report of Appointment form for this appointment below an attestation which reads, in pertinent part, “[t]he information provided above and all other information submitted by me, both oral and written throughout the employment and certification process is thorough, complete and accurate to the best of my knowledge. I further understand and agree that any omission, falsification, or misrepresentation of any fact or portion of such information can be the sole basis for termination or my employment and/or denial or revocation of my certification at any time, now or later.”

6. The Petitioner also completed a Personal History Statement (Form F-3), on or about March 9, 2010, as part of his employment application with the Avery County Sheriff's Office and in order to obtain certification as a justice officer from the Sheriffs' Commission.

7. Question No. 39 of the Sheriffs' Commission Form F-3 asks the applicant to disclose whether or not he had ever “used any illegal drugs including but not limited to marijuana, steroids, opiates, pills, heroin, cocaine, crack, LSD, etc., to include even one time use or experimentation.” When the Petitioner answered Question No. 39 on this Personal History Statement, he stated, “marijuana tried it when I was a teenager 2003".

8. Contemporaneous with Petitioner's completion of the Personal History Statement for his employment as a deputy sheriff, Petitioner also completed a Personal History Statement for the Lynville Land Harbor Company Police Agency. Petitioner completed this Personal History Statement on March 31, 2010. In response to Question Number 44 on this Personal History Statement, Petitioner was asked, “Have you ever used marijuana?” In response to this question, the Petitioner checked the block, “Yes”, and stated, “I tried it when I was a teenager.”

9. When the staff for the Respondent reviewed the Petitioner's Avery County Personal History Statement and compared it to the Petitioner's Company Police Personal History Statement and the Petitioner's 2008 Report of Appointment form for the Department of Correction, staff noticed the discrepancy as to the Petitioner's use of marijuana. Specifically, it was noted that the Petitioner did not disclose his prior use of marijuana on the Department of Correction Report of Appointment form.

10. Staff solicited the input of the Petitioner as to why he answered differently on the previous Department of Correction Report of Appointment form concerning his prior involvement with marijuana. Petitioner responded on two separate occasions by letter. These letters (Respondent's Exhibits 5 and 6) acknowledge that the Petitioner did use marijuana. Petitioner went on to state that he did not remember how he had answered the Department of Correction application and if it was wrong that he answered it by mistake.

11. The Probable Cause Committee of the Respondent subsequently found probable cause to believe that the Petitioner's Application for Certification should be denied based upon his making a knowing material misrepresentation of information required for certification by not fully disclosing his prior involvement with marijuana on his 2008 Report of Appointment form for the North Carolina Department of Correction.

12. Petitioner testified at this administrative hearing and admitted to his prior use of marijuana. Petitioner stated that while he was in high school he attended a party at a friend's house where an individual produced a marijuana cigarette and he in turn smoked from it. Petitioner testified that this was his only use of the drug. Petitioner acknowledged that his response on the Report of Appointment form for the Department of Correction was wrong in so far as he stated that he had never used any illegal drugs. Petitioner's explanation was that he was rushed to complete the application as a friend had told Petitioner that he could expedite the Petitioner's application. Petitioner acknowledged that at the time he applied for the Department of Correction he was unemployed and needed a job to support his wife and newborn child. Petitioner also acknowledged that the question on the Report of Appointment form for the Department of Correction concerning his prior illegal use of drugs is the only incorrect answer on the form. Petitioner stated that all of the other answers were accurate.

13. When questioned about his prior employment with the Department of Correction, Petitioner stated that he had worked for the Department of Correction from April 2008 until November 2008. Petitioner stated on his Avery County Personal History Statement that he left the Department of Correction for “personal” reasons. Petitioner also responded on his Avery County Personal History Statement (specifically Question No. 27) that he had never been discharged or requested to resign from a position because of criminal misconduct or rules violations. Following this testimony, Petitioner was shown a copy of Respondent's Exhibits 8 and 9. Respondent's Exhibit 8 is December 2, 2008 correspondence between personnel within the North Carolina Department of Correction advising that the Petitioner resigned from the Department of Correction while under disciplinary investigation. The memorandum goes on to state that the Petitioner was charged during the summer of 2008 with writing a worthless check. Petitioner failed to notify the Department of Corrections about this charge. Petitioner further failed to appear in court on that charge. This correspondence goes on to reflect that Petitioner was notified about the Department of Correction investigation and the Petitioner completed a witness statement as a part of that investigation. Following his completion of the witness statement, Petitioner failed to return to work. Approximately two weeks later, the Petitioner called and stated that he resigned. Respondent's Exhibit 9 is a notification form from the Department of Correction to the North Carolina Criminal Justice Standards Division notifying the Division staff of the Petitioner's worthless check charge. This documentation reflects that the Petitioner resigned while under investigation by the Department of Correction for failure to report his offense.

14. Petitioner denied knowing that he was under investigation by the Department of Correction. Petitioner further stated that the reason he left the Department of Correction was because he and his wife had discussed his career choices and decided that the Department of Correction was not the career field for him.

15. Petitioner acknowledged that he would have been required to submit to a polygraph examination for his employment as a Company Police Officer had he followed through with the application. The Petitioner's application for commissioning as a company police officer was not however processed as the Petitioner was released by the Company Police Agency for sleeping on the job.

16. Honesty and integrity are essential attributes to be a justice officer. The Petitioner's explanation for his omission of his previous use of marijuana from the Report of Appointment form for the Department of Correction is not plausible. The Petitioner answered every question on the Report of Appointment form accurately except for the one asking about his use of marijuana. Coupled with this observation, are the circumstances surrounding the Petitioner's departure from the Department of Correction. It is clear that the Petitioner knew the Department of Correction was looking into his failure to appear on the worthless check charge. Indeed, Respondent's Exhibit 8 reflects that the Petitioner was asked to submit a statement concerning this fact. Immediately after this, the Petitioner left the Department of Correction and missed work without any explanation given to the Department of Correction. The Petitioner telephoned the Department of Correction later to notify them that he would not be returning. Question No. 3 on the Department of Correction Report of Appointment form is clear and unambiguous. The Petitioner acknowledged that he had not forgotten about his use of marijuana when he completed the form. Taken as a whole, the undersigned finds that the Petitioner knowingly omitted his prior use of marijuana from the Department of Correction Report of Appointment form. This omission was material.

17. Throughout the course of his testimony, Petitioner continued to try to justify and/or explain his previous actions, which only succeeded in demonstrating that he was continuing to be untruthful and that his credibility was questionable.

CONCLUSIONS OF LAW

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

2. The Petitioner knowingly made a material misrepresentation of information required for certification by failing to disclose his prior use of marijuana on his 2008 Department of Correction Report of Appointment form.

3. The Petitioner's knowing material misrepresentation of information required for certification constitutes 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 substantial evidence.

PROPOSAL FOR DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law the undersigned recommends the Petitioner's Application for Certification as a justice officer be denied for a period of six months. Following this six month period, the undersigned further recommends that the Respondent certify the Petitioner and place the Petitioner on a probationary period for an additional three 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, to submit Proposed Findings of Fact and to present oral and written arguments to the Agency. N.C.G.S. § 150B-40(e).

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

This the 21st day of July 2011.

___________________________________

DONALD W. OVERBY

ADMINISTRATIVE LAW JUDGE

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