STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF COLUMBUS 02 DOJ 1584

CHARLES S. GRAINGER, )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

N.C. CRIMINAL JUSTICE )

EDUCATION AND TRAINING )

STANDARDS COMMISSION, )

Respondent. )

THIS MATTER was heard before the undersigned Administrative Law Judge on January 16, 2003 in Carolina Beach, North Carolina.

APPEARANCES

Petitioner: Charles S. Grainger, Pro Se

2168 Hallsboro Road, South

Hallsboro, North Carolina 28442

Respondent: Amy L. Yonowitz, Assistant Attorney General

Attorney for Respondent

NC Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

ISSUE

Whether the Respondent has just cause to suspend Petitioner’s certification as a correctional officer.

RULES AT ISSUE

12 NCAC 9G .0102 (10)(t)

12 NCAC 9G .0504 (b)(3)

12 NCAC 9G .0505 (b)(1)

FINDINGS OF FACT

Stipulated Facts

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 the Proposed Suspension of Correctional Officer Certification letter mailed by the Respondent on August 21, 2002.

2. The North Carolina Criminal Justice Education and Training Standards Commission (hereinafter the Commission or Respondent) 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 correctional officers and to deny, revoke, or suspend such certification.

3. 12 NCAC 09G.0504(b)(3) provides that the Commission may suspend, revoke, or deny the certification of a correctional officer when the Commission finds:

That the applicant for certification or the certified officer has committed or been convicted of a misdemeanor as defined in 12 NCAC 09G.0102 after certification. (emphasis added).

4. Petitioner was issued Probationary Certification (PRB 238515190) by the Commission effective May 29, 2001 and General Certification (GNB 238515190) effective May 29, 2002 to serve as a full-time correctional officer with the Department of Corrections.

5. Petitioner was arrested on or about August 30, 2001 for the criminal offense of Injury to Personal Property, which occurred on or about August 29, 2001, when Petitioner unlawfully and willfully did injure personal property, a 1988 Mazda Pickup Truck, the property of Gregory T. Robinson, causing damages in excess of $200.00.

6. The criminal offense of Willful and Wanton Injury to Personal Property in excess of $200.00, in violation of N.C.G.S. § 14-160(b), constitutes a misdemeanor pursuant to 12 NCAC 09G.0102(10)(t) of the Commission’s Administrative Rules.

7. Petitioner was also arrested on or about August 30, 2001 for the criminal offense of Simple Assault, which occurred on or about August 29, 2001, when Petitioner unlawfully and willfully did assault and strike Gregory T. Robinson by striking him in the face with his fist.

8. On November 7, 2001, Petitioner entered into a deferred prosecution agreement with the District Attorney, whereby the criminal charges of Injury to Personal Property and Simple Assault were voluntarily dismissed upon Petitioner’s completion of six months of unsupervised probation and payment of restitution in the amount of $300.00 to Mr. Gregory T. Robinson.

9. On November 7, 2001, Petitioner signed an Admission in Deferred Prosecution case stating that Petitioner did assault Greg Robinson by striking him in the face, and did damage the personal property of Greg Robinson, a 1988 Mazda pickup truck.

Adjudicated Facts

10. On August 29, 2001, Petitioner went to On Cue in Whiteville, North Carolina to pick up his girlfriend (now wife), Amber, from work. When Petitioner arrived, Amber was upset and told him that a co-worker named Greg Robinson had been harassing her earlier in the day by using foul language and grabbing her buttocks. Petitioner went to talk to Greg Robinson about this situation while Amber remained in Petitioner’s vehicle.

11. Petitioner confronted Robinson about the situation and the two men got into an argument. Robinson put two fingers in Petitioner’s face and Petitioner then struck Robinson with his fist. At that time, Robinson returned to his vehicle.

12. Robinson got out of his vehicle and approached Petitioner again. The two men continued to fight. Petitioner swung his fist towards Robinson and Robinson ducked. As a result, Petitioner’s fist hit one of the windows of Robinson’s truck and caused it to break. The next day, Petitioner told his supervisor at Columbus Correctional Prison about this incident.

13. Subsequently Petitioner was arrested on the charges of Simple Assault and Willful and Wanton Injury to Personal Property in excess of $200.00. These charges were dismissed by the District Attorney on November 7, 2001, pursuant to Petitioner’s signing of an “Admission in a Deferred Prosecution Case”, and paying $300.00 in restitution to Greg Robinson.

14. On September 20, 2001, staff of the Criminal Justice Education and Training Standards Commission received a memorandum from Department of Corrections Personnel Director, Jeffrey Becker, indicating that Petitioner had been charged with Simple Assault and Willful and Wanton Injury to Personal Property in excess of $200.00.

15. On January 8, 2002, staff received another memorandum from DOC Personnel Director, Jeffrey Becker indicating that Petitioner had received a deferred prosecution on the charges of Simple Assault and Willful and Wanton Injury to Personal Property in excess of $200.00.

16. At the time Petitioner received the deferred prosecution, he held General Certification as a correctional officer with Respondent and was employed at the Columbus Correctional Prison. Currently, Petitioner remains employed as a correctional officer with the Columbus Correctional Prison.

17. Investigator with Respondent, Richard Squires, conducted an investigation into this incident and submitted his findings to the Standards Committee of Respondent. The Standards Committee found there was probable cause to determine that Petitioner had committed the offense of Willful and Wanton Injury to Personal Property in excess of $200.00, in violation of the Commission’s rules.

CONCLUSIONS OF LAW

1. Both parties are properly before this Administrative Law Judge in that jurisdiction is proper and both parties received notice of hearing.

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 9, to certify law enforcement officers and to deny, revoke, or suspend such certification.

3. There is sufficient evidence that Petitioner committed the misdemeanor of Willful and Wanton Injury to personal property, in violation of the Commission’s rules, by unlawfully and willfully hitting the window of Greg Robinson’s truck with his fist and causing the window to break.

4. The criminal offense of Willful and Wanton Injury to Personal Property in excess of $200.00, in violation of N.C.G.S. § 14-160(b), constitutes a misdemeanor pursuant to 12 NCAC 09G.0102(10)(t) of the Commission’s Administrative Rules.

5. The criminal offense of Simple Assault, in violation of N.C.G.S. § 14-33, does not constitute a misdemeanor pursuant to 12 NCAC 09G.0102(10) of the Commission’s Administrative Rules.

6. The Commission has sufficient grounds pursuant to 12 NCAC 9G .0102 (10)(t),

12 NCAC 9G .0504 (b)(3), and 12 NCAC 9G .0505 (b)(1), to suspend Petitioner’s criminal justice officer certification.

Based upon the above Findings of Fact and Conclusions of Law, the undersigned makes the following:

PROPOSAL FOR DECISION

It is hereby recommended that Petitioner’s criminal justice officer certification be suspended for a period of not less than three (3) years for commission of a misdemeanor. It is further recommended that this period of suspension be suspended for three (3) years on the condition that Petitioner not violate any Federal or State laws, with the exception of minor traffic violations, or rules of the Commission.

NOTICE

The agency making the Final Decision in this contested case is required to give each party an opportunity to file exceptions to this Recommended Decision, to submit proposed findings of fact, and to present oral and written arguments to the agency. N.C. Gen. Stat. § 150B-40(e). The agency is required by N.C. Gen. Stat. § 150B-36(b) 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 Criminal Justice Education and Training Standards Commission.

This the 11th day of February, 2003.

__________________________

Beryl E. Wade

Administrative Law Judge

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