STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF MECKLENBURG 10 DOJ 0391

____________________________________________________________________________

JOHN DAVID DYKES, )

PETITIONER, )

)

)

v. ) PROPOSAL FOR DECISION

)

NORTH CAROLINA CRIMINAL )

JUSTICE EDUCATION AND TRAINING )

STANDARDS COMMISSION, )

RESPONDENT. )

____________________________________________________________________________

In accordance with North Carolina General Statute § 150B-40(e), Respondent requested the designation of an Administrative Law Judge to preside at an Article 3A, North Carolina General Statute § 150B, contested case hearing of this matter. Based upon the Respondent’s request, Administrative Law Judge Melissa Owens Lassiter heard this contested case in Raleigh, North Carolina on June 9, 2010. On July 21, 2010, Respondent filed a Proposal for Decision. On July 26, 2010, Petitioner filed its Proposed Decision.

APPEARANCES

Petitioner: Charles Ali Everage, Esq.

Attorney for Petitioner

Everage Law Firm, PLLC

1800 Camden Road, Suite 104

Charlotte, North Carolina 28203

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

Whether Respondent’s proposed denial of Petitioner’s law enforcement officer certification, based upon Petitioner knowingly making a material misrepresentation of information required for certification in his application materials for Kodiak Company Police Agency, is supported by a preponderance of the evidence?

RULES AT ISSUE

12 NCAC 09A .0204(b)(6)

12 NCAC 09A .0205(b)(4)

EXHIBITS ADMITTED INTO EVIDENCE

Petitioner: None

Respondent: 1 - 8

FINDINGS OF FACT

1. Prior to the presentation of evidence in this matter, the undersigned heard arguments from counsel, and without objection, adopted the Findings of Fact entered by the Honorable J. Randall May in the matter of John Dykes v. the North Carolina Department of Justice, Company Police Program in file # 09 DOJ 2639. These findings are incorporated herein and attached hereto. (Attachment 1)

2. 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 December 22, 2009. (Respondent’s Exhibit 5)

3. 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 commission company police officers and to revoke, suspend or deny such certification.

4. Richard Squires, investigator for the Criminal Justice Standards Division, explained at hearing that Petitioner is an applicant for a company police officer commission. According to N.C.Gen. Stat. § 74E-6, each company police officer must take the oath of office required of a law enforcement officer before the individual assumes the duties of a company police officer. Furthermore, prior to being able to take the oath of office, each company police officer must first be certified by Respondent North Carolina Criminal Justice Education and Training Standards Commission pursuant to 12 NCAC 09C .0301.

5. On December 22, 2009, Respondent found probable cause to deny Petitioner’s law enforcement officer certification based on Petitioner’s omissions in his Personal History Statement (Form F-3), completed on or about October 11, 2008, that was part of his application with Kodiak Company Police Agency. (Respondent’s Exhibits 1 and 5) Specifically, Question No. 39 of that Personal History Statement asks:

Were you ever court martialed, tried on charges, or were you the subject of a summary court, deck court, captains mast, or company punishment, or other disciplinary action while a member of the armed forces?

In response to that question, Petitioner checked the blank by the answer “Yes.” Petitioner provided an explanation of, "Article 15, I believe twice for late formation. Discharge, General under honorable conditions."

6. The Personal History Statement (Form F-3) is a necessary and required part of the application process to become a commissioned company police officer. Page ten (10) of the Personal History Statement (Form F-3) contains the following paragraph, just above the Petitioner’s notarized signature:

I hereby certify that each and every statement made on this form is true and complete and I understand that any misstatement or omissions of information will subject me to disqualification or dismissal. I also acknowledge that I have a continuing duty to update all information contained in this document. I will report to the employing agency and forward to the NC Criminal Justice Education and Training Standards Commission any additional information which occurs after the signing of this document.

(Respondent’s Exhibit 1)

7. In his previous testimony and written statements, Petitioner asserted that he did not receive non-judicial punishment for desertion, and therefore did not have to list it on the F-3. Petitioner claimed that he believed he was subject to an Article 15 non-judicial punishment for being late for formation by thirty seconds on one occasion, and by fifteen seconds on a second occasion. He contended that he was not subject to an Article 15 non-judicial punishment even though his records reflect he deserted the U.S. Army for over two months in late 1989, and again for almost one month later in 1990 just as his unit was set to deploy for the Gulf War.

8. However, evidence in the record shows that Petitioner received a non-judicial punishment while in the United States Army for the offense of desertion that occurred on or about October 22, 1989 through December 27, 1989. (Respondent’s Exhibit 3)

9. The Department of the Army provided documentation indicating that on or about March 14, 1990, Petitioner was issued an Article 15 (non-judicial punishment) for the crime of “desertion” occurring on or about October 22, 1989. This is a crime punishable under Article 15 of the Uniform Code of Military Justice (UCMJ). Those documents revealed that there was a determination of guilt for the charge of desertion, and Petitioner was subjected to non-judicial punishment from his Commander (Captain Jeffrey Rolka), which included the following: an oral reprimand, a forfeiture of one-half months pay for two months, reduction in rank from E4 to E2, extra duty for forty five days, and restriction for a period of 45 days. (Respondent’s Exhibits 2, 3, 4. 7-8)

10. Petitioner’s assertions are not credible in light of the evidence presented.

11. The preponderance of the evidence showed that Petitioner knowingly made material misrepresentations of fact on the Personal History Statement (Form F-3) on or about October 11, 2008, by failing to include the information related to his non-judicial punishment, while in the United States Army, for the offense of desertion that occurred on or about October 22, 1989 through December 27, 1989.

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 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 revoke, suspend or deny such certification.

3. 12 NCAC 09A .0204(b) states 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:

(6) has knowingly made a material misrepresentation of any information required for certification or accreditation.

4. 12 NCAC 09A .0205(b) states that:

When the Commission suspends or denies the certification of a criminal justice officer, the period of sanction shall be not less than five years; however, the Commission may either reduce or suspend the period of sanction under paragraph (b) of this Rule or substitute a period of probation in lieu of suspension of certification following an administrative hearing, where the cause of sanction is:

(4) material misrepresentation of any information required for certification or accreditation.

5. Petitioner has the burden of proof. Petitioner has failed to show by a preponderance of the evidence that Respondent improperly proposed to deny his law enforcement officer certification.

6. Petitioner knowingly made material misrepresentations of information required for certification on the Personal History Statement (Form F-3) on or about October 11, 2008, when he applied for employment with Kodiak Company Police Agency. Petitioner knowingly made a material misrepresentation by failing to include the information related to his non-judicial punishment, while in the United States Army, for the offense of desertion that occurred on or about October 22, 1989 through December 27, 1989.

7. Respondent’s proposed denial of the Petitioner’s law enforcement officer certification is supported by substantial evidence.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends Respondent AFFIRM its denial of Petitioner's law enforcement officer certification for a period of not less than five (5) years.

NOTICE

The North Carolina Criminal Justice Education and Training Standards Commission will make the Final Decision in this contested case. That agency 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-40(e).

This the 10th day of August, 2010.

____________________________

Melissa Owens Lassiter Administrative Law Judge

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

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

Google Online Preview   Download