STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 09 DOJ 4631

WILLIAM EUGENE SUMMEY, )

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 Donald W. Overby heard this contested case in Raleigh, North Carolina on December 18, 2009.

APPEARANCES

Petitioner: Michael R. Delafield

Commerce Building, Suite 1000

19 West Hargett Street

Raleigh, North Carolina 27602

Respondent: E. Michael Heavner, Assistant Attorney General

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Is Respondent’s proposed suspension of Petitioner’s law enforcement officer certification based upon Petitioner’s knowingly making a material misrepresentation of any information required for certification supported by a preponderance of the evidence?

RULES AT ISSUE

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

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

EXHIBITS

Petitioner offered the following numbered exhibits which were admitted into evidence: Numbers 6, 10, and 11; Numbers 1 – 5 and 7 – 9 were duplicative of exhibits offered and received from Respondent.

Respondent offered the following numbered exhibits which were admitted into evidence: Numbers 1 – 14.

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, and the documents and exhibits received and admitted into evidence, the undersigned Administrative Law Judge makes the following FINDINGS OF FACT.

In making the FINDINGS OF FACT, the undersigned Administrative Law Judge 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. 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 suspend law enforcement officer certification letter mailed by the Respondent on June 22, 2009. (Respondent’s Exhibit 14)

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 9A, to certify law enforcement officers and to revoke, suspend, or deny such certification.

3. 12 NCAC 09A.0204(b)(6) 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 knowingly made a material misrepresentation of any information required for certification or accreditation.

4. 12 NCAC 09A.0205(b)(4) provides that when the Commission suspends or denies the certification of a criminal justice officer for a material misrepresentation of any information required for certification or accreditation, the period of sanction shall be not less than five years; however, the Commission may either reduce or suspend the period of sanction or substitute a period of probation in lieu of suspension of certification following an administrative hearing.

5. Petitioner was certified as a criminal justice officer with the Mount Holly Police Department by the Commission in 1997. He separated from the Mount Holly Police Department in 2001. (Respondent’s Exhibit 1)

6. In 1997, as part of his original application to be certified as a law enforcement officer with the Mount Holly Police Department, Petitioner completed the required Commission Forms F-3 (Personal History Statement) and F-5A (LE) (Report of Appointment/Application For Certification). (Respondent’s Exhibits 4 & 5)

7. Petitioner signed the Commission Form F-5A (LE) on December 18, 1997. (Respondent’s Exhibit 4) On this form, Petitioner indicated that he had “NO CRIMINAL CHARGES OTHER THAN MINOR TRAFFIC OFFENSES.” On Commission Form F-5A above the Petitioner’s Signature is the following statement:

As the applicant for certification, I attest that I am aware of the minimum standards for employment, that I meet or exceed each of those requirements, that the information provided above and all other information submitted by me, both oral and written throughout the employment and certification process, is thorough, complete, and accurate to the best of my knowledge. I further understand and agree that any omission, falsification or misrepresentation of any factor or portion of such information can be the sole basis for termination of my employment and/or denial, suspension or revocation of my certification at any time, now or later. If applicable, I specifically acknowledge that my continued employment and certification are contingent on the results of the fingerprint record check and other criminal history records being consistent with the information provided in my Personal History Statement and as reflected in this application.

8. In response to Question #47, on the Commission Form F-3, which asked “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?”, Petitioner checked the box adjacent to “No.” (Respondent’s Exhibit 5)

9. Immediately above Question 47, on the Commission Form F-3 (Respondent’s Exhibit 5) is a note, which states:

NOTE: 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), duty to stop in the event of an accident, and driving while license permanently revoked, and speeding at least 15 mph over limit to elude arrest.

Answer all of the following questions completely and accurately. Any falsifications or misstatements of fact may be sufficient to disqualify you. If any doubt exists in your mind as to whether or not you were arrested or charged with a criminal offense at some 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 was expunged by a judge's court order.

10. In completing the Commission Form F-3, Petitioner signed the Personal History Statement before a Notary Public in November 1997. Petitioner's signature is below the following statement:

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.

(Respondent’s Exhibit 5)

11. In 2007, Petitioner applied for certification as a criminal justice officer with the Belmont Police Department. As part of his application for certification, Petitioner completed a Commission Form F-5A (LE) which he signed on April 10, 2007. (Respondent’s Exhibit 6) On this form under the Criminal Record Section, he indicated that on January 27, 1989, he had been charged with “Noise Ordinance Violation” by the Lincoln County Sheriff’s Office.

On the Commission Form F-5A (LE) above the Petitioner’s signature is the following statement:

As the applicant for certification, I attest that I am aware of the minimum standards for employment, that I meet or exceed each of those requirements, that the information provided above and all other information submitted by me, both oral and written throughout the employment and certification process, is thorough, complete, and accurate to the best of my knowledge. I further understand and agree that any omission, falsification or misrepresentation of any factor or portion of such information can be the sole basis for termination of my employment and/or denial, suspension or revocation of my certification at any time, now or later. I further understand that I have a continuing duty to notify the Commission of all criminal offenses which I am arrested for or charged with, plead no contest to, plead guilty to or am found guilty of. If applicable, I specifically acknowledge that my continued employment and certification are contingent on the results of the fingerprint records check and other criminal history records being consistent with the information provided in my Personal History Statement and as reflected in this application.

12. Upon receipt of the 2007 Commission Form F-5A (LE), acting in accordance with standard procedure, the Criminal Justice Standards Division compared this Form F-5A (LE) to information in Petitioner’s certification file including his earlier Commission Form F-5A (LE). There was a discrepancy between the forms – the noise ordinance violation was only listed on the most recent form. Richard N. Squires, an investigator with the Criminal Justice Standards Division, was assigned to conduct an investigation regarding the discrepancy.

13. Mr. Squires obtained a copy of criminal records pertaining to Petitioner from the Clerk of Superior Court of Lincoln County. The Clerk of Court’s records indicated that Petitioner had been charged on January 27, 1989 with “M NOISE ORDINANCE VIOLATION” and was convicted of this offense on February 28, 1989. (Respondent’s Exhibit 7)

14. N. C. Gen. Stat 14-4 establishes that violation of municipal ordinances may be a Class 3 misdemeanor in some instances and may be an infraction if the ordinance regulates the operation or parking of vehicles. Respondent’s Exhibit 7 is a copy of the data entry from the Clerk of Court’s records and is not a copy of the official charge or judgment. From the evidence presented it is not clear if the Petitioner’s violation is a misdemeanor or infraction.

15. Petitioner submitted a statement, dated April 19, 2007, about the discrepancy in which he stated:

. . . I was in fact fined for the violation and charged but did not realize a Noise Ordinance would go on my permanent driving record. I do not want to mislead anyone but honesty (sic) do not remember if it was ever mentioned during my pre-screening process in 1997. I would never intentionally not disclose any information on purpose.

For the screening process in Belmont, I did have my driving record pulled by the DMV to ensure that I did not miss anything and tried to cross my t’s and dot my i’s. I have realized over the years to double check and make sure that nothing is left to speculation or assumption. I will continue to improve and utilize the skills of accuracy and detail to help become the best that I can be in anything I do.

(Respondent’s Exhibit 8)

16. Mr. Squires presented his findings to the Commission’s Probable Cause Committee on May 16, 2007. Petitioner also spoke to the Probable Cause Committee. After considering all of the information, the Probable Cause Committee determined that Petitioner had knowingly made two material misrepresentations: One when he failed to list his 1989 conviction for the Noise Ordinance Violation on his 1997 Commission Form F-5A (LE) and a second one when he failed to list it on his 1997 Commission Form F-3. The Probable Cause Committee offered and Petitioner accepted and signed a Consent Agreement in which Petitioner accepted a written reprimand for his material misrepresentation in violation of 12 NCAC 09A .0204(b)(6). (Respondent’s Exhibit 9) The full Commission approved the Consent Agreement. The Criminal Justice Standards Division mailed a copy of the agreement and a written reprimand signed and executed May 18, 2007 summarizing the violations to Petitioner. (Respondent’s Exhibit 10) After summarizing the findings of the Probable Cause Committee, the letter reprimanded Petitioner:

You are hereby issued a ‘Written Reprimand.” Your actions reflect poorly on you, your agency and the criminal justice profession. Such actions cannot and will not be tolerated. This letter serves to put you on notice that future violations of the Commission’s rules could result in more severe sanctions which could include the suspension or revocation of your law enforcement officer’s certification. You have a duty to comply with all Commission rules and regulations and future failures will not be taken lightly.

(Respondent’s Exhibit 10)

17. Petitioner was awarded probationary certification as a law enforcement officer with the Belmont Police Department on May 30, 2007, twelve days after the date of the written reprimand. Petitioner received general certification on May 30, 2008. (Respondent Exhibits 1-3)

18. On November 19, 2008, Petitioner separated from the Belmont Police Department. (Respondent’s Exhibit 1)

19. In December 2008, Petitioner applied for certification with the Monroe Police Department. Petitioner completed a Commission Form F-5A (LE) which he signed on November 3, 2008. (Respondent’s Exhibit 11)

20. Petitioner failed to list his noise ordinance violation under the criminal record section of this form. On the Commission Form F-5A (LE) above the Petitioner’s signature is the following statement:

As the applicant for certification, I attest that I am aware of the minimum standards for employment, that I meet or exceed each of those requirements, that the information provided above and all other information submitted by me, both oral and written throughout the employment and certification process, is thorough, complete, and accurate to the best of my knowledge. I further understand and agree that any omission, falsification or misrepresentation of any factor or portion of such information can be the sole basis for termination of my employment and/or denial, suspension or revocation of my certification at any time, now or later. I further understand that I have a continuing duty to notify the Commission of all criminal offenses which I am arrested for or charged with, plead no contest to, plead guilty to or am found guilty of. If applicable, I specifically acknowledge that my continued employment and certification are contingent on the results of the fingerprint records check and other criminal history records being consistent with the information provided in my Personal History Statement and as reflected in this application.

(Respondent’s Exhibit 11)

21. Additionally, as a required part of the application process, Petitioner completed a Commission Form F-3 which he signed on October 17, 2008. (Respondent’s Exhibit 12)

22. In response to Question #47 on the Commission Form F-3, which asked “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense? (The term charged includes being issued a citation or criminal summons)”, Petitioner checked the box adjacent to “Yes,” but only listed a 2001 “Speeding/Reckless Driving” charge. He failed to list the noise ordinance violation. (Respondent’s Exhibit 12)

23. Immediately above Question 47 on the Commission Form F-3 (Respondent’s Exhibit 12) is a note, which states:

NOTE: 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), duty to stop in the event of an accident, and driving while license permanently revoked, and speeding to elude arrest.

Answer all of the following questions completely and accurately. Any falsifications or misstatements of fact may be sufficient to disqualify you. If any doubt exists in your mind as to whether or not you were arrested or charged with a criminal offense at some 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 was expunged by a judge's court order.

24. In completing the Commission Form F-3, Petitioner signed the form before a Notary Public on October 17, 2008. Petitioner's signature is below the following statement:

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.

(Respondent’s Exhibit 12)

25. Upon receipt of the 2008 Commission Form F-5A (LE), acting in accordance with standard procedure, the Criminal Justice Standards Division compared the Form F-5A (LE) to information in Petitioner’s certification file including the written reprimand he had received in 2007 as well as his 1997 and 2007 Commission Forms F-5A (LE). Richard N. Squires, an investigator with the Criminal Justice Standards Division, was assigned to conduct an investigation.

26. In response to a request from Mr. Squires, Petitioner submitted a statement dated November 18, 2008. (Respondent’s Exhibit 13) Petitioner stated he disclosed his Noise Ordinance Violation and his reprimand to the Monroe Police Department during the pre-employment process via an on-line questionnaire. He also stated, “On the F3 form and the F5A form I was asked to list all offenses other than minor traffic offenses. When I read the portion where it stated ‘all offenses other than minor traffic offenses’ I didn’t believe I needed to list the noise ordinance charge due to it being a city ordinance violation and not a state statute charge.” Petitioner’s contention was made even though he had signed the Consent Order with Respondent in May 2007, which was based upon the same event.

27. The online computer program in which Petitioner disclosed his noise ordinance violation is not a Commission program and the Commission does not normally receive information from such a program. The Commission received the information only after Petitioner provided it as an attachment to his November 18, 2008 letter. Petitioner submitted the letter in response to Mr. Squires’ request for information concerning Petitioner’s failure to list his criminal conviction for the noise ordinance violation.

28. Mr. Squires presented the findings of his investigation to the Commission’s Probable Cause Committee on May 28, 2009. Petitioner also spoke to the Probable Cause Committee. The Probable Cause Committee found that pursuant to 12 NCAC 09 A .0204(b)(6) probable cause existed to suspend Petitioner’s certification for not less than five years based on his knowingly making a material misrepresentation of information required for certification.

29. The Committee found two bases for the suspension. The first occurred when Petitioner made a material misrepresentation by failing to list his misdemeanor conviction of “Noise Ordinance Violation” (Lincoln Co. – 89 Cr 641) under the Criminal Record Section of the Commission Form F-5A (LE) that he completed and signed on November 3, 2008 as part of his application certification with the Monroe Police Department. The second occurred when Petitioner made a material misrepresentation by failing to list his misdemeanor conviction of “Noise Ordinance Violation” (Lincoln Co. – 89 Cr 641) in response to Question #47 of Commission Form F-3 which asks “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?”. He completed and signed this form on October 17, 2008 as part of his application for certification with the Monroe Police Department. Petitioner received from the Respondent a Proposed Suspension of Law Enforcement Officer Certification, dated June 22, 2009. (Respondent’s Exhibit 14) The document accurately reflects the findings of the Probable Cause committee.

30. Petitioner contends that he was charged with the Noise Ordinance Violation in 1989, when as a teenager he was “cruising town.” He disclosed the violation to the Belmont Police Department in 2007 when preparing his application. He received assistance from the Belmont Police Department in preparing his Commission Forms. He was aware that the reprimand he had received in 2007 from the Commission would remain in his certification file.

31. Petitioner stated that he left Belmont to be closer to home. While at Belmont, he initiated the creation of a canine unit and raised money for the unit. He received a high performance evaluation score of 97 out of a possible 110. (Petitioner’s Exhibit 6) His former supervisor, Phillip Hunter, and his former Chief, David James, wrote letters attesting to Petitioner’s character. (Petitioner’s Exhibits 10 and 11)

32. Petitioner disclosed the Noise Ordinance violation in two places on the online questionnaire he submitted to the Monroe Police Department. In the section requesting information about past traffic violations, Petitioner stated, in relevant part, “Also in 89 had noise ordiance [sic] violation and paid fine.” (Respondent’s Exhibit 13) In the section entitled “Other Legal,” Petitioner wrote, “Unintentionally misrepresentation: did not place noise ordiance [sic] on application 1997 Mt Holly application but was placed on 2006 application Belmont application.” (Respondent’s Exhibit 13) Petitioner knew the online questionnaire he completed went to the Monroe Police Department but did not know whether it went to the Commission.

33. Petitioner has not worked since leaving the Belmont Police Department. He has three children and he has not missed any child support payments. Petitioner states that once this matter is resolved, Monroe Police Department will hire him. The Monroe Police Department is aware that Petitioner is currently certified and could be employed as a law enforcement officer. The Monroe Police Department decided that it would not hire Petitioner until it could review, what, if any final action the Commission took in regards Petitioner’s certification. After learning that the Monroe Police Department would not hire him until after the resolution of his appeal, Petitioner applied for a position with the Ranlo Police Department but they took no action on his application.

34. Sergeant Rhett Bolen of the Monroe Police Department testified. Sergeant Bolen was present at the firing range when Petitioner completed his Commission Form F-5A (LE). Petitioner asked Sergeant Bolen whether he should list the noise ordinance violation. Sergeant Bolen told Petitioner he did not think he had to list the violation because he thought the noise ordinance violation was an infraction. Bolen was unaware that Petitioner had previously been reprimanded by the Commission for not listing the violation. Bolen was surprised that Petitioner had not revealed this important information to him. Had Bolen been aware of this information, Bolen would have advised Petitioner that he should list the noise ordinance violation. In Sergeant Bolen’s opinion, it would have been very difficult for Petitioner to find employment with any law enforcement agency during the pendency of his appeal from the Probable Cause Committee’s findings.

35. Sergeant Jeff Green of the Union County Sheriff’s Office testified. He attended BLET with Petitioner and believed him to be honest, hardworking, and a good officer. At BLET, the instructors just briefly went over Commission Forms F-3 and F-5A (LE).

36. Petitioner, through his attorney, admitted that a material misrepresentation occurred and requested that the judge consider the fact that the Monroe Police Department decided not to employ him until this matter is resolved, and that Petitioner would have had a very difficult time finding work with a law enforcement agency during the pendency of this appeal.

BASED UPON the foregoing FINDINGS OF FACT the Undersigned makes the following:

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 the 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. 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 9A, to certify law enforcement officers and to revoke, suspend, or deny such certification.

3. Petitioner was issued General Certification by the Respondent on May 30, 2008 and is currently certified but is not currently employed as a law enforcement officer.

4. Petitioner knowingly made a material misrepresentation of information required for certification when he failed to list his misdemeanor conviction of “Noise Ordinance Violation” (Lincoln Co. – 89 Cr 641) under the Criminal Record Section of the Commission Form F-5A (LE) he completed and signed on November 3, 2008 as part of his application certification with the Monroe Police Department.

5. Petitioner knowingly made a material misrepresentation of information required for certification when he failed to list his misdemeanor conviction of “Noise Ordinance Violation” (Lincoln Co. – 89 Cr 641) in response to Question #47 of Commission Form F-3 which asks “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?”. He completed and signed this form on October 17, 2008 as part of his application for certification with the Monroe Police Department.

6. Petitioner knowingly made the material misrepresentations on the F-5A LE and the F-3 forms even though he had signed a Consent Agreement with Respondent concerning the exact same misrepresentations approximately a year and a half before.

7. The Respondent may properly suspend Petitioner’s certification pursuant to 12 NCAC 9A.0204(b)(6) for his material misrepresentations. Pursuant to 12 NCAC 9A .0205(b)(4), the period of sanction shall be not less than five (5) years for material misrepresentation of any information required for certification; however, “the Commission may either reduce or suspend the period of sanction . . . or substitute a period of probation in lieu of suspension . . . .”

8. The actions of Respondent within the statutory authority of the agency, made upon lawful procedure, are supported by substantial evidence and are not arbitrary, capricious or an abuse of discretion.

9. The party with the burden of proof in a contested case must establish the facts required by G.S. § 150B-23(a) by a preponderance of the evidence. N.C. Gen. Stat. § 150B-29(a). The administrative law judge shall decide the case based upon the preponderance of the evidence. N.C. Gen. Stat. § 150B-34(a).

10. Petitioner has the burden of proof in the case at bar. (See Overcash v. N.C. Dep't of Env't & Natural Res., 179 N.C. App. 697, 704, 635 S.E.2d 442, 444, rev denied 361 N.C. 220, 642 S.E.2d 445 (2007)). Petitioner has failed to meet this burden. Petitioner has failed to show by a preponderance of the evidence that Respondent's proposed suspension of Petitioner's law enforcement officer certification is not supported by substantial evidence. Petitioner has failed to show that he did not knowingly make material misrepresentations of any information required for certification.

11. Respondent has shown by a preponderance of the evidence that Petitioner knowingly made material misrepresentations of information required for certification. Respondent’s proposed suspension of Petitioner’s law enforcement officer certification is supported by a preponderance of the evidence.

12. At the conclusion of this hearing, this Court articulated that a period of suspension of sixty days (60) would be appropriate; however, on further consideration and in view of the fact that Petitioner made the material misrepresentations after receiving a written warning from Respondent for the exact same behavior only one and one-half years prior, this Court is of the opinion that a longer period of suspension is appropriate.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW, the undersigned Administrative Law Judge recommends based upon Petitioner’s material misrepresentations of information required for certification that Respondent suspend Petitioner’s law enforcement officer certification for a period of six months. After the six months suspension, Petitioner will be on a probationary period for twenty-four (24) months. Any probable cause finding, including but not limited to the failure to list the noise ordinance violation, which is substantiated by the Commission during the twenty-four month period will be cause for immediate suspension.

NOTICE

The Agency making the Final Decision in this contested case is required to give each party an opportunity to file Exceptions to the Proposal for 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 that will make the Final Decision in this contested case is the North Carolina Criminal Justice Education and Training Standards Commission.

IT IS SO ORDERED.

This the _______ day of January, 2010.

____________________________

Donald W. Overby

Administrative Law Judge

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