STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF LENOIR 02 DOJ 0526

ANTONIO FITZGERALD MCNEIL )

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 August 20, 2002 in Kinston, North Carolina.

APPEARANCES

Petitioner: Antonio Fitzgerald McNeil

492 Jessie T. Bryan Road

Kinston, North Carolina 28504-7402

Respondent: Amy L. Yonowitz,

Assistant Attorney General

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 law enforcement officer.

RULES AT ISSUE

12 NCAC 9A .0204(b)(3)(A)

12 NCAC 9A .0103 (20)(b)

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 Suspension of State Youth Services Officer Certification letter mailed by Respondent on February 19, 2002.

2. The North Carolina Criminal Justice Education and Training Standards Commission (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 criminal justice officers and to deny, revoke, or suspend such certification.

3. That 12 NCAC 9A.0204(b)(3)(A) provides 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 has committed or been convicted of a criminal offense or unlawful act defined in 12 NCAC 9A.0103 as a Class B misdemeanor.

4. Petitioner was issued probationary certification (PRC 244291024) by the Commission effective September 8, 1997 and general certification (GRC 244291024) effective September 8, 1998 to serve as a State Youth Services Officer with Dobbs Training School.

5. Petitioner pled guilty and was found guilty of Willful and Wanton Injury to Personal Property in violation of N.C.G.S. § 14-160(b) and Willful and Wanton Injury to Real Property, in violation of N.C.G.S. § 14-127 in Lenoir County District Court on or about August 22, 2000.

6. The criminal offenses of Willful and Wanton Injury to Personal Property, where the damaged caused was in excess of two hundred dollars($200.00), and Willful and Wanton Injury to Real Property constitute Class B misdemeanors pursuant to 12 NCAC 9A.0103(20)(b) of the Commission’s Administrative Rules.

Adjudicated Facts

1. On June 23, 2000 Petitioner and his wife, Sharon McNeil, were married yet separated. Petitioner went to his wife’s residence to pick up some of his belongings and an argument ensued.

2. Sharon McNeil testified that during the course of the argument, both she and Petitioner were yelling at each other. Petitioner pulled the home telephone out of the wall.

3. Petitioner and his wife continued to argue, during which time he caused additional damage to the residence, including: a hole in an interior door, broken glass in a china cabinet, a hole in the kitchen table, and damage to a mirror and dresser.

4. On August 22, 2000, Petitioner appeared in Lenoir County District Court and pled guilty to the charges of Injury to Personal Property and Injury to Real Property. The injury to personal property was in excess of $200. Petitioner was found guilty by District Court Judge David Leech and placed on 12 months unsupervised probation. In addition, he was ordered to pay restitution in the amount of $445 to Sharon McNeil. Further, Petitioner was ordered to complete 24 hours of community service and not to assault or threaten to assault Sharon McNeil.

5. Petitioner and his wife have reconciled and currently are residing together. The events of June 23, 2000 were unusual and a one-time occurrence during their eleven year relationship that is unlikely to happen again.

6. Robert Elmore, Director of Dobbs Training Center where Petitioner is employed, testified that he has known Petitioner since 1997. He stated that Petitioner has been a very good employee.

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 was convicted of the Class B misdemeanor of Willful and Wanton Injury to Personal Property in excess of $200, in violation of the Commission’s rules, based upon Petitioner’s plea of guilty to this charge on August 22, 2000 in the District Court Division of Lenoir County.

4. There is sufficient evidence that Petitioner was convicted of the Class B misdemeanor of Willful and Wanton Injury to Real Property, in violation of the Commission’s rules, based upon Petitioner’s plea of guilty to this charge on August 22, 2000 in the District Court Division of Lenoir County.

5. The Commission has sufficient grounds under 12 NCAC 9A .0204 (b)(3)(A) and 12 NCAC 9A.0103(20)(b) 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 the Petitioner’s criminal justice officer certification be suspended for a period of not less than five (5) years for conviction of the Class B misdemeanors of Willful and Wanton Injury to Personal Property in excess of $200; and Willful and Wanton Injury to Real Property. It is further recommended said suspension be suspended for a period of five years provided that Petitioner not violate any federal or state laws, with the exclusion of minor traffic offenses, or any 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 25th day of September, 2002.

__________________________

Beryl E. Wade

Administrative Law Judge

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