STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 05 DOJ 2053

BILLY GRAY PHILLIPS, II, )

Petitioner, )

)

)

v. ) PROPOSAL FOR DECISION

)

NORTH CAROLINA DEPARTMENT )

OF JUSTICE, COMPANY POLICE )

PROGRAM, )

Respondent. )

In accordance with North Carolina General Statute § 150B-23, 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 Petitioner’s request, Administrative Law Judge Beecher R. Gray heard this contested case in High Point, North Carolina on March 17, 2006.

APPEARANCES

Petitioner: Billy Gray Phillips, II Pro Se

225 Farmingdale Avenue

Winston-Salem, NC 27107

Respondent: Ashby T. Ray, Assistant Attorney General

Attorney for Respondent

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Is Respondent’s proposed denial of Petitioner’s company police commission supported by substantial evidence?

RULES AT ISSUE

12 NCAC 02I .0202(4)

12 NCAC 09A  .0204(b)(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. The parties received notice of hearing by certified mail more than fifteen (15) days prior to the hearing and each stipulated on the record that notice was proper. 

2. Respondent found probable cause to deny Petitioner’s company police officer’s commission as a result of two material misrepresentations of facts on the Personal History Statement (Form F3) Petitioner completed as part of his application with Wackenhut Corporation Company Police on or about June 28, 2005. (Respondent’s Exhibit 1)

3. The first material misrepresentation outlined in the finding of probable cause to deny Petitioner’s company police officer commission arises from the Personal History Statement (Form F3) completed and signed by Petitioner on or about June 28, 2005, for Wackenhut Corporation Company Police Department.  Specifically, Petitioner responded to question 26, which reads, “If you have ever been discharged or requested to resign from any position because of criminal or personal misconduct or rules violations, give details:” by writing “no”.  (Respondent’s Exhibit 1)

4. The second material misrepresentation outlined in the finding of probable cause to deny Petitioner’s company police officer commission arises  from Question 31 of the Personal History Statement (Form F3), which was completed and signed by Petitioner on or about June 28, 2005, as part of his application with Wackenhut Corporation Company Police, Question 31 reads, “List all jobs you have held in the last ten years.  Put your present or most recent jobs first.  If you need more space, you may attach additional sheets...”  In response to this question, Petitioner stated that he left the Cooleemee Police Department in May of 2003 to pursue employment with the Forsyth County Sheriff’s Office.  (Respondent’s Exhibit 1)

5. Page ten (10) of the Personal History Statement (Form F3), completed and signed by Petitioner on or about June 28, 2005 as part of his application with Wackenhut Corporation Company Police contains the following paragraph just above 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)

6. Petitioner was dismissed from the Cooleemee Police Department on or about June 4, 2003.  (Respondent’s Exhibit 2)

7. Eddie Drum, was Chief of the Cooleemee Police Department when Petitioner was dismissed, testified, and it is found as fact, that in May of 2003 Chief Drum received a complaint against Petitioner.  Chief Drum went to Petitioner’s residence and told Petitioner he was suspended with pay, pending the outcome of the investigation.  Chief Drum did not tell Petitioner what the nature of the investigation was.

8. In June of 2003, after completing his investigation, Chief Drum called Petitioner to his office and gave him the choice of resigning or being fired.  Petitioner repeatedly asked Chief Drum why he was going to be fired if he didn’t resign.  Chief Drum never told Petitioner the nature of the complaint against him, or the reason he was requesting Petitioner’s resignation.  Petitioner refused to resign without being told why, and was fired.

9. Petitioner was aware that he had been fired from the Cooleemee Police Department when he completed his Personal History Statement (Form F-3) for Wackenhut Corporation Company Police, on or about June 28, 2005.  However, Petitioner was not aware of the reason for his termination from the Cooleemee Police Department at the time he completed his Personal History Statement (Form F3) for Wackenhut Corporation Company Police.

10. 12 NCAC 02I .0212(c)(2) states that a company police commission shall be denied upon a finding that the officer fails to meet any of the required minimum standards as specified in 12 NCAC 02I. 0202.

11. 12 NCAC 02I .0202(4) states that every company police officer must meet the following requirements to obtain and maintain a company police commission;  meet the minimum standards for criminal justice officer established by the North Carolina Criminal Justice Education and Training Standards Commission, appearing in Title 12, Chapter 9 of the North Carolina Administrative Code; which standards are hereby incorporated by reference, and shall automatically include any later amendments and editions of the referenced material.

12. 12 NCAC 09A .0204(b)(6) states that the Commission may deny the certification of a criminal justice officer when the Commission finds that the applicant for certification has knowingly made a material misrepresentation of any information required for certification or accreditation. 

13. 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. 

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. Both parties properly are 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 his company police commission by letter mailed by Respondent on October 19, 2005.  (Respondent’s Exhibit 4)

2. Petitioner made a material misrepresentation of fact on the Personal History Statement (Form F3), which was completed and signed by      Petitioner on or about June 28, 2005, as part of his application with Wackenhut Corporation Company Police in that, in response to Question No. 31, he failed to disclose that he had been terminated from the Cooleemee Police Department in June of 2003.

3. Petitioner made a material misrepresentation of fact on the Personal History Statement (Form F3) he completed for Wackenhut Corporation Company Police, on or about June 28, 2005, in that he failed to state that he had been dismissed from the Cooleemee Police Department in response to question 31, when he knew he had been dismissed.

4. There is no evidence to show that Petitioner knew the reason for his termination from the Cooleemee Police Department when he answered “no” to question 26 of the Personal History Statement (Form F3), which he completed on or about June 28, 2005, as part of his application with Wackenhut Corporation Company Police.

5. Petitioner did not make a material misrepresentation of fact when he answered “no” to question No. 26 of the Personal History Statement (Form F3) that he completed on or about June 28, 2005 as part of his application with Wackenhut Corporation Company Police. 

6. The Personal History Statement (Form F3) completed by Petitioner on or about June 28, 2005, as part of his application with Wackenhut Corporation Company Police, was a necessary and required part of the application process to become a commissioned company police officer.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends that Respondent deny Petitioner’s company police officer commission for a period of one year for making a material misrepresentation of fact on the Personal History Statement (Form F3) completed by Petitioner as part of his application with Wackenhut Corporation Company Police. 

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.

This the 5th day of April, 2006.

____________________________

Beecher R. Gray

Administrative Law Judge

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