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STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF MECKLENBURG 00 DOJ 0910

|Gary J. Watts |) | |

|Petitioner |)) | |

| |) | |

|vs. |))))|PROPOSAL FOR DECISION |

| | | |

|N. C. Sheriffs' Education and | | |

|Training Standards Commission | | |

|Respondent | | |

On December 6, 2000, Administrative Law Judge Melissa Owens Lassiter heard this contested case in Charlotte, North Carolina. This case was heard pursuant to Respondent’s G.S. § 150B-40(e) request for designation of an Administrative Law Judge to conduct a contested case hearing on this matter under Article 3A, Chapter 150B of the North Carolina General Statutes.

APPEARANCES

Petitioner: Gary Jonathan Watts, Pro Se

Respondent: John J. Aldridge III

Assistant Attorney General

ISSUE

1. Did substantial evidence exist to prove Petitioner committed a Class B Misdemeanor Assault on a female offense, in violation of Respondent’s rules; and if so,

2. Should Respondent suspend or revoke Petitioner’s justice officer certification because Petitioner committed a misdemeanor assault on a female offense?

FINDINGS OF FACT

Stipulated Facts

1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, that both parties received notice of hearing, and that Petitioner received the Proposed Revocation of Justice Officer Certification letter mailed by Respondent on June 15, 2000.

2. The North Carolina Sheriffs’ Education and Training Standards Commission (Respondent) has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10, Subchapter 10B, to certify justice officers as either deputy sheriffs or jailers, and to deny, revoke or suspend such certification.

3. Petitioner was issued a general detention officer certification (GNI 245479672) on June 11, 1997, by the Commission to serve as a full-time justice officer with the Wake County Sheriff’s Office.

4. That 12 NCAC 10B .0204(d)(1) provides that the Commission may revoke, suspend or deny the certification of a justice officer when the Commission finds:

That the applicant for certification or the certified officer has committed or been convicted of a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor and which occurred after the date of initial certification.

5. That 12 NCAC 10B .0204(b)(2) provides that the Commission shall revoke, deny, or suspend the certification of a justice officer when the Commission finds:

That the applicant for certification or the certified officer fails to meet or maintain any of the minimum employment or certification standards required by 12 NCAC 10B .0300.

6. That 12 NCAC 10B .0301(a)(8) provides that every Justice Officer employed or certified in North Carolina shall:

Be of good moral character.

7. Petitioner was arrested on July 19, 1999 for Misdemeanor Assault on a Female, which occurred on or about July 19, 1999, when Petitioner allegedly assaulted and struck Sherri Watts, a female person, by shoving her in the chest. The charges against the Petitioner were dismissed on September 8, 1999.

8. The criminal offense of assault on a female in violation of N.C.G.S. § 14-33(c)(2) constitutes a “Class B misdemeanor” pursuant to 12 NCAC 10B .0204(d)(1) of the Commission’s administrative rules.

9. Petitioner, on June 23, 1999, in the presence of law enforcement officers investigating a domestic dispute involving Petitioner, sped his car away from the officers, spun it around 180 degrees, spun tires in his yard and the yard of a neighbor and spun tires in the road. Petitioner was issued a citation for reckless driving to endanger for these actions.

Adjudicated Facts

June 23, 1999 Incident

10. On June 23, 1999, Charlotte-Mecklenburg Police Department Officer B. Ashley responded to a call for assistance at Petitioner’s residence. When Officer Ashley arrived at Petitioner’s home, she saw Petitioner sitting in his driveway on the trunk of his car. The back right passenger door of the car was open and clothes were falling from the back seat onto the driveway.

11. Charlotte-Mecklenburg Police Department Officer Antley was standing at the door of the residence talking to Petitioner’s wife, Sherri Watts. When Officer Ashley asked Petitioner about the present situation, Petitioner would not speak to him. Officer Ashley walked over to Officer Antley and Ms. Watts, and asked Ms. Watts if the Petitioner had struck her. Ms. Watts responded “no.” While standing in the doorway, Officer Ashley looked inside the home and observed several broken objects on the living room floor and down the hallway. With Ms. Watts’ permission, Officer Ashley walked into Petitioner’s house. Officer Ashley observed damage to a bedroom door, clothes were strewn all over the bedroom floor, a jewelry box and jewelry were thrown down the hallway, and candleholders and broken candles were lying in the living room area. The kitchen floor was covered with broken flowers, and another broken candleholder was lying under the kitchen table.

12. Ms. Watts gave the officers a statement about what had happened between her and Petitioner. (See Resp. Exh. No. 2). After the officers attempted to talk with Petitioner, and verified no altercation was continuing between the Watts, the officers advised Petitioner he could leave. Petitioner grabbed his clothes from his car and threw them into the driveway. He got into his car, “floored” the gas pedal, drove straight ahead and spun his tires. Next, Petitioner’s car spun in a 180-degree turn, hit the grass in the Watts’ yard, and almost struck a tree in the neighbor’s yard. Once Petitioner was able to get his car under control, he spun tires in the neighbor’s driveway and again on the roadway upon leaving the residence. Officer Huey, who was standing beside Petitioner’s car, had to jump out of the way to avoid being struck by the car. The evidence presented did not prove that Petitioner intentionally tried to hit Officer Huey with his car, but did show that Petitioner was acting out of anger and bad judgment.

13. Approximately one hour later, Petitioner returned home, flashing the car’s headlights from high to low at the officers. When Officers Huey and Antley approached Petitioner’s car, Petitioner handed his pistol to Officer Huey and advised them that he wanted to retrieve some personal items from his home. Although Officer Huey believed Petitioner’s weapon was unloaded, she secured the weapon in the trunk of her vehicle.

14. The officers allowed Petitioner to re-enter his house even though Ms. Watts remained inside the house. While standing outside the home, Officer Ashley looked inside the house and observed Ms. Watts standing in front of the door’s window, attempting to leave. Petitioner was standing right behind her. Ms. Watts opened the door and asked the officers to stay while she gathered some belongings to leave.

15. Officer Antley walked inside the home and issued Petitioner a citation for reckless driving. Petitioner questioned Officer Antley as to why he issued Petitioner the citation, and told the officer he was wrong for doing so. Officer Huey answered Petitioner’s question and then returned Petitioner’s gun to him. The officers escorted Ms. Watts in leaving the residence. As the officers were driving away from the Watts home, Officer Ashley looked back and noticed Petitioner standing at the window staring at them. Petitioner was holding his gun down by his side.

16. At the administrative hearing, Ms. Watts explained that after work on June 23, 1999, she and Petitioner drove their cars to Pep-Boys to purchase new brakes for her car. When Pep-Boys advised Ms. Watts that they could not work on her car that day, she told Petitioner. Petitioner reacted by angrily getting in his car, and leaving Ms. Watts at Pep-Boys. Ms. Watts did not know what was wrong with Petitioner, but knew that Petitioner “just gets like that.” When Ms. Watts returned home, Petitioner was in the den, and would not speak to her. When “Petitioner gets like that”, she knows just to leave him alone. Ms. Watts left home for approximately one hour. Upon her return, Petitioner was gone.

17. Later that night, Petitioner returned home, and turned the television volume so loud that it awakened Ms. Watts. When Ms. Watts came out of the bedroom and asked Petitioner what was wrong, Petitioner began yelling at her. She went back to the bedroom and locked the door. Ms. Watts could hear Petitioner throwing and breaking things in the living room. Petitioner then kicked in the bedroom door, came into the bedroom, and began yelling at Ms. Watts.

18. When Petitioner left the bedroom, Ms. Watts tried, but was unable to call 911, because Petitioner had taken the phone off the hook in the kitchen. When the Petitioner went outside, Ms. Watts locked the back door, and called 911. She advised the 911 operator that she was scared and her husband had a gun. The Petitioner re-entered the house with his key, continued gathering his belongings, and continued to yell at Ms. Watts until the police arrived.

July 19, 1999 Incident

19. On July 19, 1999, Sherri Watts arrived home from shopping around 10:00 p.m. She saw Petitioner’s car “running” in the driveway. Once inside the house, Ms. Watts noticed that Petitioner could not walk straight, and thought Petitioner was drunk. She saw an open bottle of whiskey on the kitchen counter. Petitioner was mad, and fussing that he could not locate his keys. In looking for his keys, Petitioner threw clothes from a dresser drawer all over the bedroom floor. Fearful that Petitioner would damage the clothes she had just bought, Ms. Watts placed her new purchases back in her car. Ms. Watts turned off Petitioner’s car, took the keys, and left. After approximately one hour, Ms. Watts returned home to find Petitioner was gone.

20. At approximately 11 p.m., Ms. Watts lay down on the couch, and went to sleep. She slept with two kitchen knives to protect her from Petitioner. Around 5 a.m., Petitioner returned home. Ms. Watts awoke to find Petitioner standing over her. Petitioner started yelling at her and began pushing on her shoulders with both hands as Ms. Watts lay on the couch. Sherri swung the knives at the Petitioner, hitting him with one of the knives. Ms. Watts called the police and waited for them to arrive.

21. Officer Antley responded to Ms. Watts’ 911 call. After listening to Ms. Watts’ version of what occurred between Ms. Watts and Petitioner, Officer Antley arrested Petitioner for domestic assault. Officer Antley observed a cut on Petitioner’s left knuckle.

22. Mecklenburg County Sheriff’s Office conducted its own internal investigation of Petitioner’s behavior on June 23, 1999 and July 19, 1999. They found that Petitioner committed the acts alleged by Sherri Watts on June 23, 1999, and on July 19, 1999, and concluded that such conduct was unbecoming to a detention officer. Mecklenburg County Sheriff’s Office suspended Petitioner from work for ten (10) working days without pay, and gave Petitioner a mandatory referral to the Employee Assistance Program.

23. Petitioner attended and completed anger management counseling sessions sponsored through the Mecklenburg County Sheriff’s Office.

24. The Mecklenburg County District Attorney’s office dismissed the criminal assault on a female charge against Petitioner because Petitioner attended the Employee Assistance Program.

25. At the administrative hearing, Petitioner denied pushing his wife on the shoulders, denied drinking whiskey, and denied being intoxicated on July 19, 1999. He claimed he only drank a “couple of beers” on that date. Petitioner also adamantly denied having an anger management problem. Most importantly, Petitioner failed to acknowledge or take any responsibility for his own behavior or actions on June 23, 1999 and July 19, 1999. Instead, he blamed his wife for his behavior and actions on those dates.

26. In considering the Petitioner’s testimony, demeanor, and character for truthfulness at the administrative hearing, the undersigned finds that Petitioner’s testimony was not credible.

27. A preponderance of the substantial evidence proved that Petitioner assaulted his wife on July 19, 1999, by pushing her on her shoulders as she lay on the couch. Petitioner’s actions were unprovoked and constitute the offense of assault on a female.

28. A preponderance of the substantial evidence proved that on June 23, 1999, Petitioner allowed his anger to control his behavior and actions such that he acted erratically and drove his automobile in a reckless manner that was both disrespectful and possibly hazardous to his fellow law enforcement officers.

29. Petitioner’s commission of the assault on a female offense, coupled with his June 23, 1999 behavior and actions, constitute a lack of good moral character as required by a law enforcement officer.

CONCLUSIONS OF LAW

1. The parties are properly before the undersigned Administrative Law Judge and the parties received proper notice of hearing.

2. 12 NCAC 10B .0204(d)(1) provides that the Commission may revoke, suspend or deny the certification of a justice officer when the Commission finds:

That the applicant for certification or the certified officer has committed or been convicted of a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor and which occurred after the date of initial certification.

3. 12 NCAC 10B .0204(b)(2) provides that the Commission shall revoke, deny, or suspend the certification of a justice officer when the Commission finds:

That the applicant for certification or the certified officer fails to meet or maintain any of the minimum employment or certification standards required by 12 NCAC 10B .0300.

4. 12 NCAC 10B .0301(a)(8) provides that every Justice Officer employed or certified in North Carolina shall:

Be of good moral character.

5. Substantial evidence exists to prove Petitioner committed the Class B misdemeanor assault of a female offense in violation of N.C.G.S. § 14-33 (c)(2), when he pushed Ms. Sherri Lynn Watts with both hands on her shoulders on July 19, 1999.

6. Petitioner’s actions of assault of a female on July 19, 1999, and his actions on June 23, 1999 of speeding away from law enforcement officers investigating a domestic dispute involving Petitioner and wife, spinning his car in a 180 degree turn, spinning tires in his and his neighbor’s yard, and spinning tires in the road, are indicative of a lack of good moral character.

7. Petitioner's certification as a justice officer is subject to be revoked based upon 12 NCAC 10B .0204(d)(1) for his commission of the Class B misdemeanor and 12 NCAC 10B .0204(b)(2) for lack of good moral character.

PROPOSAL FOR DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends Respondent suspend Petitioner’s certification as a justice officer for committing a Class B misdemeanor assault on a female offense on July 19, 1999 and for lacking the good moral character required of all justice officers in 12 NCAC 10B .0301.

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. G.S. 150B-40(e).

The agency that will make the final decision in this contested case is the North Carolina Sheriff’s Education and Training Standards Commission.

This the 2nd day of March, 2001.

_________________________

Melissa Owens Lassiter

Administrative Law Judge

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