STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF LEE

KIMBERLY BLUE CAMERON,

Petitioner,

v.

N.C. SHERIFFS' EDUCATION

AND TRAINING STANDARDS

COMMISSION,

Respondent.

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IN THE OFFICE OF ADMINISTRATIVE HEARINGS

08 DOJ 1269

PROPOSAL FOR DECISION

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On October 1, 2008, Administrative Law Judge Donald W. Overby, heard this case in Raleigh, North Carolina. This case was heard after Respondent requested, pursuant to N.C.G.S. § 150B-40(e), designation of an administrative law judge to preside at the hearing of a contested case under Article 3A, Chapter 150B of the N.C.G.S.

APPEARANCES

Petitioner: Kimberly Blue Cameron Williams, pro se

Respondent: John J. Aldridge III, Special Deputy Attorney General

ISSUE

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

FINDINGS OF FACT

1. Both parties properly are before this Administrative Law Judge, in that jurisdiction and venue are proper, that both parties received notice of hearing, and that the Petitioner received by certified mail the proposed Denial of Justice Officer certification letter mailed by Respondent Sheriffs' Commission on April 1, 2008.

2. The North Carolina Sheriffs' Education and Training Standards Commission (hereinafter referred to as the Sheriffs' Commission) has the authority granted under Chapter 17E of the 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 N.C.A.C. 10B .0204(c)(1) and (2) states that the Sheriffs' Commission may deny 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) has knowingly and designedly by any means of false pretense, deception, defraud, misrepresentation, 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 detention officer through the Lee County Sheriff's Office on June 4, 2007. The Petitioner signed a Report of Appointment form on June 4, 2007 and attested that she was aware that any information she provides in the certification process must be thorough, complete and accurate to the best of her knowledge. She further attested that she understood and agreed that any omission, falsification or misrepresentation of any fact or portion of such information, may be the sole basis for termination of her employment and/or denial or revocation of her certification at any time.

5. The Petitioner completed a Personal History Statement (Form F-3) on or about May 4, 2007, as part of her employment application with the Lee County Sheriff's Office, and in order to obtain certification as a justice officer from the Sheriffs' Commission.

6. Question #39 of the Sheriffs' Commission Form F-3 asked the applicant if she were ever court-martialed, tried on charges, or the subject of a summary court, deck court, non-judicial punishment, captain's mast, company punishment, Article 15, and/or any other disciplinary action while a member of the military. Petitioner responded by checking the block "No", indicating that she had never been the subject of any disciplinary action while a member of the military.

7. Question #47 of the Sheriffs' Commission Form F-3 asked the applicant to divulge his/her criminal offense record. Specifically, the question indicates:

Include all offenses other than minor traffic offenses. The following are not minor traffic offenses and must be listed below:

DWI, DUI (alcohol or drugs), failure to stop in the event of an accident (hit and run), and driving while license permanently revoked or permanently surrendered (DWLR). If any doubt exists in your mind as to whether or not you were arrested or charged with a criminal offense at any point in your life, or whether an offense remains on your record, you should answer "Yes." You should answer "No," only if you have never been arrested or charged, or your record has been expunged by a judge's court order.

8. When the Petitioner completed this personal history statement for the Lee County Sheriff's Office, in response to Question #47 asking if she had ever been arrested or otherwise charged with a criminal offense, the Petitioner answered "No".

9. Respondent required a criminal record check from all locations that the Petitioner had lived within the last ten years. Consequently, since the Petitioner had indicated that she had served in the United States Army from May 2002 until July 1, 2003 and was stationed at Ft. Sam Houston, Texas, copies of the Petitioner's military records were requested.

10. In response to a request for the Petitioner's military records from Susan Stone of the Lee County Sheriff's Office, the United States Army submitted documentation on the Petitioner under a cover letter dated January 4, 2008. The information retrieved on the Petitioner, indicated that the Petitioner was arrested by military police officials on June 27, 2003 on Ft. Sam Houston Texas for the offense of larceny on Army/Air Force Exchange Service property. Specifically, Petitioner was arrested on this date for shoplifting a pair of underwear. According to the military police report, and as corroborated by Petitioner's testimony, Petitioner arrived at the Army Post Exchange (PX) in civilian clothing on June 27, 2003 at approximately 8:20 a.m. There she selected several pairs of underwear and various blouses and proceeded to the women's dressing room. She was observed to place the underwear that she wore into the PX into her purse and remove the price tag from a pair of underwear that she had selected from the PX and proceeded to wear them out of the dressing room. Petitioner went to the central checkout and paid for two pair of panties but did not render payment for the undergarments she was wearing. Petitioner testified that she told the cashier that she was wearing a third pair of panties and to charge her for them. Petitioner acknowledged in her testimony that she did not present the sales tag for the underwear she was wearing to the cashier. Indeed, Petitioner testified that she could not show this tag to anyone because she had apparently lost it. After leaving the checkout, the Petitioner was detained by a civilian security guard for the PX. Subsequent to this detention, the Petitioner was taken into custody by two military police officers. These police officers, in uniform, handcuffed the Petitioner and transported her to the provost marshal's office. While at the provost office, Petitioner completed a written statement acknowledging that she took the underwear from the rack and wore them out of the dressing room. Petitioner denies at the administrative hearing that she did so with an intent to steal them. After completing her written statement, Petitioner was subsequently picked up by her Senior NCO and she eventually reported to her commander.

11. The Petitioner's company commander, Captain Christopher A. Flaugh, apparently imposed non-judicial punishment on the Petitioner for the theft. It appears from the available military records that Captain Flaugh issued the Petitioner a reprimand and noted that she was being administratively discharged. No military records were available showing the Petitioner's acknowledgment of this non-judicial punishment. The commander's action was codified in a Commander's Report of Disciplinary Action dated September 23, 2003. This document was prepared after the Petitioner had been administratively separated from the United States Army due to a knee injury. (Petitioner was separated effective July 1, 2003.)

12. When staff for the respondent noticed that the Petitioner had apparently been punished by way of non-judicial punishment while in the military, yet she did not disclose this action on her Personal History Statement, the Petitioner was asked to submit a statement explaining the apparent discrepancy. Petitioner responded in a statement dated, February 8, 2008, explaining that to her best knowledge she had not been charged with a crime, did not have to go to court, and had not been reprimanded for her actions.

13. Petitioner's explanation that she did not know that she was reprimanded for the offense of shoplifting by way of non-judicial punishment is creditable. While it appears from available military records, that the Petitioner was in fact reprimanded as a result of her commission of the offense of shoplifting, no records are available to indicate that Petitioner either receipted for this punishment or was otherwise made aware of it prior to her separation from the United States Army on July 1, 2003. The only available records submitted by the Department of the Army are reports completed September 23, 2003 reflecting the reprimand and the fact that Petitioner was barred from the PX. It is reasonable to conclude that she did not knowingly make a misrepresentation on her personal history statement as a result of these punishments.

14. However, question #47 of the Personal History Statement asking if Petitioner had ever been arrested should have prompted a positive answer by the Petitioner. Petitioner acknowledges that she was arrested by law enforcement officials on June 27, 2003 for the offense of shoplifting. Petitioner admitted that she had not forgotten about this arrest at the time that she completed the personal history statement. Therefore, this omission was knowingly made.

CONCLUSIONS OF LAW

1. The parties 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 her June 27, 2003 arrest for the criminal offense of shoplifting in response to question #47 on the Personal History Statement.

3. The Petitioner's knowing material misrepresentation of information required for certification constitutes a violation of 12 N.C.A.C. 10B.0204(c)(1) and (2). The respondent's proposed denial of the Petitioner's justice officer certification is supported by substantial evidence. However, in light of the documentary evidence indicating that the commander's report of punishment was completed after the Petitioner had separated from active duty, and she therefore would not have been in a position to readily know about these sanctions, the respondent should exercise leniency in the imposition of sanctions.

PROPOSAL FOR DECISION

Based on the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent grant the Petitioner's justice officer certification but place the Petitioner on a period of probation for a period of twelve months.

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 13th day of October, 2008.

______________________________

DONALD W. OVERBY

Administrative Law Judge

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