STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF BRUNSWICK 08 DOJ 0987

GERALD D. BLACK )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

NORTH CAROLINA DEPARTMENT )

OF JUSTICE, COMPANY POLICE )

PROGRAM, )

Respondent. )

______________________________ )

In accordance with North Carolina General Statute § 150B-23, Petitioner requested the designation of an administrative law judge to preside at an Article 3, North Carolina General Statute § 150B, contested case hearing of this matter. Based upon the Petitioner’s request, Administrative Law Judge Joe L. Webster heard this contested case in Bolivia, North Carolina on August 11, 2008.

APPEARANCES

Petitioner: Gerald D. Black

4870 Vernon Road

Leland, North Carolina 28451

Respondent: J. Joy Strickland, Assistant Attorney General

Attorney for Respondent

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Did the Respondent properly deny Petitioner’s company police officer commission?

RULES AT ISSUE

12 NCAC 02I .0212(c)(6)

12 NCAC 02I .0213(a)(4)

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 makes the following Findings of Fact. 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.

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 Probable Cause to Deny Company Police Commission letter mailed by the Respondent on February 18, 2008. (Respondent’s Exhibit 4)

2. Respondent has the authority granted under Chapter 74E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 2I, to commission company police officers and to revoke, suspend or deny such certification.

3. Respondent found probable cause to deny Petitioner’s company police officer commission as a result of omissions from the Applicant Interview portion of the Mandated Background Investigation (Form F-8) that the Petitioner completed as part of his application with New Hanover Regional Medical Center Company Police on or about March 20, 2007. (Respondent’s Exhibit 3)

4. The omissions outlined in the finding of probable cause to deny Petitioner’s company police officer commission arise from the Applicant Interview portion of the Mandated Background Investigation (Form F-8). Specifically, the Petitioner responded to the question “Explain your knowledge or involvement regarding illegal drugs.” by answering “Experiment with marijuana in school.” Additionally he responded to the question “Have you ever possessed or sold any amount of illegal drugs? When? By answering “No.” However, evidence exists that shows Petitioner possessed marijuana with the intent to sell and deliver it and did not disclose this information during the Applicant Interview portion of the mandated background investigation. (Emphasis in original) (Respondent’s Exhibit 3)

5. Agent Kelly Oaks of the State Bureau of Investigation (SB) has been certified

to conduct polygraph examinations for approximately 1 ½ years. She testified that part of her responsibilities at the SBI include conducting pre-employment polygraphs for the company and campus program. Agent Oaks administered a polygraph examination to the Petitioner on November 15, 2007. Prior to the examination, she reviewed the application materials that the Petitioner had submitted to Ms. Huskey. Prior to administering the examination on November 15, 2007, Agent Oaks gave the Petitioner the opportunity to review the application paperwork that he had submitted and he declined to make any changes. Agent Oaks conducted both a pre and post polygraph interview with the Petitioner. During the pre test interview, Petitioner said he had smoked marijuana 3-4 times but had never sold or purchased marijuana. During the post test interview, Agent Oaks asked the Petitioner what questions he was having trouble with. At that point, Petitioner said that he had possessed marijuana on one occasion and intended to sell and deliver it but changed his mind and did not deliver it. A memo summarizing Agent Oaks’ notes from the pre and post polygraph interviews with the Petitioner was sent to Ms. Huskey. (Respondent’s Exhibit 1)

6. Vickie Huskey, the Company Police Administrator, received and reviewed the application materials from the Petitioner for commissioning through New Hanover Regional Medical Center on or about October 18, 2007. Ms. Huskey indicated that applicants for commissioned company police officers must submit to a polygraph examination if they have not previously held general certification as a law enforcement officer. She explained that company police officers are sworn law enforcement officers and have to complete the same basic training and mandated in-service training requirements as do officers in a municipal police department. Ms. Huskey received the summary of Agent Oaks’ interviews with the Petitioner on or about November 30, 2007. She then reviewed the notes and compared that information to the application materials that had previously been submitted on behalf of the Petitioner. Ms. Huskey noticed a discrepancy in the answers provided by the Petitioner related to his possession and involvement with drugs. She then requested that the Petitioner explain his inconsistent answers. Petitioner submitted, via e-mail, a statement to Ms. Huskey indicating the following:

I would like to explain my intent to sell/deliver marijuana during 1995. I was in my mid-twenties and not that wise at the time when I did something terribly wrong. One night during the spring or summer of that year, I received a dime bag of marijuana from my cousin’s boyfriend to deliver to another person I knew. I was promised I would be given some money by my cousin’s boyfriend to deliver the marijuana. I started to make the delivery happen, but before I got to my destination I had some very serious thoughts about what I was about to do. I had a change of heart and mind about the situation and the delivery did not take place. I returned the marijuana and told my cousin’s boyfriend I could not do it. He said that it was fine and that he understood. I have sincerely regretted that night and it was a humbling experience.

(Respondent’s Exhibit 2)

7. Petitioner testified he was hired at New Hanover Regional Medical Center in

March 2007 as a security guard. He indicated the answers listed in the applicant interview section of the Mandated Background Investigation (Form F-8) are the answers he gave Sgt. Francis Speck. Petitioner said that after the polygraph examination, Agent Oaks began asking him questions about drugs and which questions that he may have had trouble with and at that time “his memory came back and he told that agent about it.” He indicated the incident that he told Agent Oaks about occurred when he was 26 years old and was hanging out with his cousin and her boyfriend. He said the boyfriend received a telephone call from a person that they both knew and the boyfriend then asked Petitioner to take some marijuana to that person and that he would pay him to deliver it. Petitioner said that he didn’t know exactly how much he would have been paid to do it. He said that he wasn’t surprised that his cousin’s boyfriend asked him to deliver it because it was rumored the boyfriend was selling drugs. Petitioner said that he had never delivered drugs before or after that incident. He said that he needed the money but after he traveled the 5 miles to where he was going to deliver it, he changed his mind.

Petitioner did not tell anyone at his department about this incident until after Ms. Huskey sent the request to his Chief that he provide a statement after the polygraph examination. At that time, Petitioner told his supervisor and his Chief. He said that his answers admitting to this incident and admitting he had not revealed it during the application process, in his response to interrogatories are accurate. Petitioner also said he received a couple of days of training about controlled substances during his Basic Law Enforcement Training (BLET) course and after that training he recognized that he had committed a felony by possessing marijuana with the intent to sell and deliver it. He also said that while in BLET, the students were instructed on how important it is to be accurate when completing the forms for commission and certification as a law enforcement officer. Petitioner said that he “made a mistake” by not including the incident on the application forms but that it was “not intentional“ and that he had “put the incident out of his mind.” (Respondent’s Exhibit 5)

8. Petitioner’s assertion that he omitted the above referenced incident related to his possession with intent to sell and deliver marijuana because he had put it out of his mind is not credible in light of a preponderance of the evidence presented. Petitioner listed that he had used marijuana while in high school which would have been eight years prior to the incident where he possessed marijuana with the intent to sell and deliver it. Therefore, his assertion that he forgot or simply put the more recent incident out of his mind is not credible in light of the fact that he listed the much older incidents of using marijuana. Additionally, Petitioner admitted that he realized after taking the Basic Law Enforcement Training course that his actions, related to the possession of the marijuana with the intent to sell and deliver it constituted a felony offense.

9. Petitioner made a knowing material misrepresentation of fact on the Applicant Interview portion of the Mandated Background Investigation (Form F-8) that he completed as part of his application with New Hanover Regional Medical Center Company Police on or about March 20, 2007 by failing to include the information related to his possession with the intent to sell and deliver marijuana in response to the questions related to possession and involvement with drugs.

10. That other than Petitioner’s misrepresentations set forth herein, Petitioner was truthful in his application and during his investigation.

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 this 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. Respondent has the authority granted under Chapter 74E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 2I, to commission company police officers and to revoke, suspend or deny such certification.

3. 12 NCAC 02I.0212(c)(6) states that a Company Police Commission shall be

revoked or denied upon a finding that the applicant for commission has knowingly made a material misrepresentation of any information required for commissioning or certification from the Company Police Administrator.

4. 12 NCAC 02I .0213(a) states that:

When the Attorney General, or his designee, suspends or denies the commission of a company police officer, the period of sanction shall not be less than three years. However, the Attorney General, or his designee, may either reduce or suspend the period of sanction under 12 NCAC 2I .0212(b) or substitute a period of probation in lieu of suspension of a commission following an administrative hearing, where the cause of sanction is:

(4) material misrepresentation of any information required for company police commissioning.

5. The Petitioner has the burden of proof. The Petitioner has failed to show, by a preponderance of the evidence, that Respondent improperly denied his company police officer commission.

6. Petitioner made a knowing material misrepresentation of fact on the applicant interview portion of the Mandated Background Investigation (Form F-8) completed by the Petitioner on or about March 20, 2007 as part of his application for employment with New Hanover Regional Medical Center Company Police by failing to include the information related to his possession with the intent to sell and deliver marijuana in response to the questions related to possession and involvement with drugs

7. The Mandated Background Investigation (Form F-8), completed by Petitioner as part of his application with New Hanover Regional Medical Center, is a necessary and required part of the application process to become a commissioned company police officer.

8. The Respondent’s denial of the Petitioner’s company police officer commission is supported by substantial evidence, however, the undersigned finds that other than the misrepresentations of the Petitioner set forth herein, the Petitioner was truthful in his application and during his investigation.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends that the Respondent deny the Petitioner’s company police officer commission for a period of three years for knowingly making material misrepresentations of fact during the applicant interview portion of the Mandated Background Investigation (Form F-8) completed by the Petitioner as part of his application with New Hanover Regional Medical Center Company Police Agency. The undersigned recommends that the Agency making the final decision suspend or reduce all but six months of the three year sanction denying Petitioner’s commission pursuant to 12 NCAC 21. 02112(b).

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 who 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 Department of Justice.

IT IS SO ORDERED.

This the 9th day of October, 2008.

____________________________

Joe L. Webster Administrative Law Judge

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