STATE OF NORTH CAROLINA



| | | |

|STATE OF NORTH CAROLINA | |IN THE OFFICE OF |

| | |ADMINISTRATIVE HEARINGS |

|COUNTY OF CUMBERLAND | |01 DOJ 1742 |

| | | |

|HECTOR CRUZ CALLEJAS, |) | |

|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 February 5, 2002 in Fayetteville, North Carolina.

APPEARANCES

Petitioner: Harry L. Southerland, Esquire

Attorney for Petitioner

4005 Fayetteville Road

Raeford, North Carolina 28376

Respondent: Amy L. Yonowitz, Assistant Attorney General

Attorney for Respondent

N.C. Department of Justice

P.O. 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)(6)

12 NCAC 9A .0205(b)(4)

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

12 NCAC 9A.0103(5)

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

The Court having reviewed the testimony of the witnesses, the exhibits of the parties and the arguments of counsel, makes the following:

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 Law Enforcement Officer Certification letter mailed by Respondent on August 21, 2001.

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

3. On January 19, 1993, Petitioner was charged with a Class A misdemeanor offense of Simple Worthless Check (1993CR012337) in violation of G.S. 14-107(d)(1) which he received a guilty verdict on March 27, 1993.

4. On July 15, 1997, Petitioner was charged with a Class B misdemeanor offense of Harassing Phone Calls in violation of G.S. 14-196(a)(3) which he received a Prayer For Judgment Continued for three years with several conditions imposed by the District Court Judge.

5. On or about November 7, 1996, Petitioner completed a Report of Appointment/ Application for Certification [Form F-5A(CJP)] as a part of his application with Respondent for certification as a correctional officer with the Sanford Correctional Center. On this form, Petitioner indicated that he had no criminal record by leaving the Criminal Offense Record Section blank.

6. On or about September 8, 1997, Petitioner completed and signed a Report of Appointment/ Application for Certification [Form F-5A(CJP)] as a part of his application with Respondent for certification as a correctional officer with the Harnett Correctional Institution. Under the Criminal Offense Record Section of this form, the Petitioner listed the following information: “Simple Worthless Check, Cumberland County, 1/93, Guilty-Paid.” Petitioner failed to list his 1997 Class B misdemeanor conviction of Harassing Phone Calls.

7. On or about May 18, 1998, Petitioner completed and signed a Report of Appointment/ Application for Certification [Form F-5A(CJP)] as a part of his application with Respondent for certification as a law enforcement officer with the Dunn Police Department. On this form, Petitioner indicated that he had no criminal record by leaving the Criminal Offense Record Section blank. On or about March 23, 2000, Petitioner reapplied for law enforcement certification with the Dunn Police Department and again indicated that he had no criminal record by leaving the Criminal Offense Record Section blank.

8. On or about March 12-13, 2001, Petitioner completed a Personal History Statement (Form F-3) as a part of his application with Respondent for certification as a law enforcement officer with the Fayetteville Police Department. Question number 47 of that form asks: “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?” Petitioner answered “No”.

9. Pursuant to 12 NCAC 9A .0204(b)(9), Petitioner failed to notify the Commission of his 1997 Class B misdemeanor conviction Harassing Phone Calls while employed and holding Correctional Officer certification at Sanford Correctional Center. Pursuant to 12 NCAC 9A .0103(5)(b), “convicted” or “conviction” means and includes, for the purposes of this chapter, the entry of: a verdict or finding of guilt by a jury, judge,...”

Adjudicated Facts

10. Investigator Dan Holloway with the Fayetteville City Police Department conducted a background investigation on Petitioner after receiving the Personal History Statement (Form F-3) dated March 12, 2001, submitted by Petitioner as part of his employment application.

11. In response to Question Number 47 on the Personal History Statement which inquired whether Petitioner had ever been arrested by law enforcement or otherwise charged with a criminal offense, Petitioner responded, “No”.

12. As part of the background investigation, Investigator Holloway conducted a criminal history check and discovered a Simple Worthless Check charge in Cumberland County for which Petitioner was found guilty on March 27, 1993. Investigator Holloway also discovered a charge of Harassing Phone Calls in Lee County for which Petitioner received a Prayer for Judgment Continued on July 30, 1997.

13. Investigator Holloway conducted a background interview and asked Petitioner if he had sustained any disciplinary actions while with any former agencies. Petitioner stated that he had not sustained any disciplinary action while with the Cumberland County Sheriff’s Office or any other agency. Investigator Holloway determined that Petitioner had, in fact, been suspended in January 2000 for two and a half days without pay from the Cumberland County Sheriff’s Office for carrying an unauthorized weapon. On March 19, 2000, while with the Cumberland County Sheriff’s Office, Petitioner also was charged with conduct unbecoming an officer for carrying an unauthorized weapon.

14. On April 11, 2001, Investigator Holloway sent a letter to Respondent (Respondent’s Exhibit # 2) in which he informed Respondent that Petitioner was employed as an officer with the Dunn Police Department and had submitted application materials to the Fayetteville City Police Department. Investigator Holloway stated that Petitioner was untruthful on his Personal History Statement (Form F-3) and in his background interview.

15. Bill DuBois, Eastern Field Services Coordinator with Respondent, received Investigator Holloway’s letter and began an investigation regarding Petitioner’s certification as a law enforcement officer. DuBois discovered that Petitioner was appointed to work as a correctional officer with Sanford Correctional Center in November 1996. A Report of Appointment (Form F-5A) was signed by Petitioner on November 7, 1996 and submitted to Respondent. On the Form F-5A where Petitioner was asked to list his criminal offense record, he wrote “None” and signed his initials. Respondent received a Report of Separation (Form F-5B) from Sanford Correctional Center which indicated that Petitioner resigned on March 27, 1997.

16. Petitioner then was appointed to work as a correctional officer with Harnett Correctional Institution in September 1997. A Report of Appointment (Form F-5A) was signed by Petitioner on September 8, 1997 and submitted to Respondent. On the Form F-5A where Petitioner was asked to list his criminal offense record, he listed the 1993 Cumberland County Simple Worthless Check Charge.

17. Respondent received a Report of Separation (Form F-5B) from Harnett Correctional Center which indicated that Petitioner resigned on March 24, 1998. On this form, the Agency indicated that, “Mr. Callejas was pending formal investigation when he decided to resign for personal reasons.”

18. Petitioner then was appointed to work as a law enforcement officer with the Dunn Police Department in May 1998. A Report of Appointment (Form F-5A) was signed by Petitioner on May 28, 1998 and submitted to Respondent. On the Form F-5A where Petitioner was asked to list his criminal offense record, he checked the box corresponding with, “No Criminal Charges other than minor traffic offenses.” Respondent received a Report of Separation (Form F-5B) from Dunn Police Department which indicated that Petitioner resigned on January 13, 1999.

19. Petitioner again was appointed to work as a law enforcement officer with the Dunn Police Department in March 2000. A Report of Appointment (Form F-5A) was signed by Petitioner on March 23, 2000. On the Form F-5A where Petitioner was asked to list his criminal offense record, he checked the box corresponding with, “No Criminal Charges.” Respondent received a Report of Separation (Form F-5B) from Dunn Police Department which indicated that Petitioner was dismissed on July 9, 2001 for, “Violation of Personnel Policy.”

20. Petitioner appeared in District Court in Cumberland County in 1993, pled guilty and was found guilty of Simple Worthless Check on March 27, 1993. Petitioner paid the face value of the check as well as court costs.

21. Petitioner appeared in District Court in Lee County in 1997 for the charge of Harassing Phone Calls. He received a Prayer for Judgment Continued (PJC) upon the conditions that he not be found in or on the premises of the complainant or her employment; not assault, communicate with or be in the presence of the complainant; not contact complainant on her job; not harass, threaten, stalk, molest, or interfere with complainant; or not contact complainant directly or indirectly.

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 knowingly made a material misrepresentation of information required for certification, in violation of the Commission’s rules, by failing to list the Simple Worthless Check conviction of March 27, 1993 under the Criminal Offense Record section of the Report of Appointment/Application for Certification (Form F-5A) signed by Petitioner on November 7, 1996 and submitted by the Sanford Correctional Center.

4. There is sufficient evidence that Petitioner knowingly made a material misrepresentation of information required for certification, in violation of the Commission’s rules, by failing to list the Harassing Phone Calls conviction of July 30, 1997 under the Criminal Offense Record section of the Report of Appointment/Application for Certification (Form F-5A) signed by Petitioner on September 8, 1997 and submitted by the Harnett Correctional Center.

5. There is sufficient evidence that Petitioner knowingly made a material misrepresentation of information required for certification, in violation of the Commission’s rules, by failing to list the Simple Worthless Check conviction of March 27, 1993 and the Harassing Phone Calls conviction of July 30, 1997 under the Criminal Offense Record section of the Report of Appointment/Application for Certification (Form F-5A) signed by Petitioner on March 18, 1998 and submitted by the Dunn Police Department.

6. There is sufficient evidence that Petitioner knowingly made a material misrepresentation of information required for certification, in violation of the Commission’s rules, by failing to list the Simple Worthless Check conviction of March 27, 1993 and the Harassing Phone Calls conviction of July 30, 1997 under the Criminal Offense Record section of the Report of Appointment/Application for Certification (Form F-5A) signed by Petitioner on March 23, 2000 and submitted by the Dunn Police Department.

7. There is sufficient evidence that Petitioner knowingly made a material misrepresentation of information required for certification, in violation of the Commission’s rules, by failing to list the Simple Worthless Check conviction of March 27, 1993 and the Harassing Phone Calls conviction of July 30, 1997 in response to question number 47 on the Personal History Statement (Form F-3) signed and submitted to the Fayetteville Police Department on or about March 12-13, 2001.

8. There is sufficient evidence that Petitioner was convicted of Harassing Phone Calls on July 30, 1997 in Lee County District Court. Pursuant to 12 NCAC 9A .0103(5)(b), “convicted” or “conviction” means and includes, for the purposes of this chapter, the entry of: a verdict or finding of guilt by a jury, judge,...” The District Court Judge imposed a Prayer for Judgment Continued (PJC) upon certain conditions, including that Petitioner not contact, assault, communicate with or harass the victim. Petitioner’s charges were neither dismissed nor was Petitioner found Not Guilty. While a final judgment was not entered, “the formal entry of judgment is not required in order to have a conviction.” State v. Hatcher, 136 N.C. App. 524, 527, 524 S.E.2d 815, 817 (2000).

9. There is sufficient evidence that Petitioner violated 12 NCAC 9A.0204(b)(9) by failing to report his 1997 conviction for Harassing Phone Calls to Respondent.

10. The Commission has sufficient grounds under 12 NCAC 9A .0204 (b)(3)(A), (b)(6) & (9), 12 NCAC 9A.0205(b)(4), and 12 NCAC 9A .0103 (5 67 ) to suspend Petitioner’s criminal justice officer certification.

Based upon the above Findings of Fact and Conclusions of Law, the undersigned makes the following:

RECOMMENDED 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 knowingly making material misrepresentations of information required for certification. It is also 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 a Class B misdemeanor. It is further recommended that the Petitioner’s criminal justice officer certification be suspended for a period of not less than five (5) years for failure to report a criminal conviction.

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 23 day of April, 2002.

__________________________

Sammie Chess, Jr.

Administrative Law Judge

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