STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF BRUNSWICK 09 DOJ 4630

RICHARD CALE MANNING, )

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 Beecher R. Gray heard this contested case in Burgaw, North Carolina on December 10, 2009.

APPEARANCES

Petitioner: Neil D. Weber

Attorney for Petitioner

401-K Chestnut Street

Wilmington, North Carolina 28401

Respondent: J. Joy Strickland, Assistant Attorney General

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Whether Respondent’s proposed suspension of Petitioner’s law enforcement officer certification for knowingly making material misrepresentations of information required for certification and for the commission of the Class B misdemeanor of filing a false report of the theft of a motor vehicle in violation of N.C.G.S.§ 20-102.1 is supported by a preponderance of the evidence.

RULES AT ISSUE

12 NCAC 09A.0204(b)(3)

12 NCAC 09A.0103(23)(b)

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

12 NCAC 09A.0205(b)(1)

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

BASED UPON careful consideration of the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following Findings of Fact. In making the Findings of Fact, the Undersigned 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. Petitioner and Respondent presented to the Court a document entitled “STIPULATIONS OF FACTS AND EXHIBITS” which was signed by the attorneys for both parties. Each of those stipulated facts and exhibits was admitted into evidence and will be referenced herein.

2. Both parties received Notice of Hearing by certified mail and each stipulate that notice was proper. Petitioner received the notification of probable cause to suspend law enforcement officer certification letter mailed by the Respondent on September 11, 2007. (Respondent’s Exhibit 18)

3. The Respondent, North Carolina Criminal Justice Education and Training Standards Commission, has authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9A, to certify criminal justice officers and to revoke, suspend, or deny such certification.

4. Petitioner currently holds general certification as a criminal justice officer with the Carolina Beach Police Department. (Respondent’s Exhibit 1)

5. Petitioner previously has held general certification with the Kure Beach Police Department and New Hanover Regional Medical Center. (Respondent’s Exhibit 2)

6. Respondent found probable cause to suspend Petitioner’s certification as a law enforcement officer for two reasons. First, Respondent found probable cause to suspend Petitioner’s certification as a law enforcement officer as a result of his knowingly making material misrepresentations of information required for certification when Petitioner:

a. completed and signed the Report of Appointment/Application for Certification (Form F-5A) as part of his application with New Hanover Regional Medical Center on or about April 29, 1997;

b. completed and signed the Report of Appointment/Application for Certification (Form F-5A) as part of his application for certification with the Kure Beach Police Department on or about July 8, 2000; and

c. completed and signed the Personal History Statement (Form F-3) as part of his application for certification with the Kure Beach Police Department on or about June 30, 2000.

(Respondent’s Exhibit 18)

7. The first material misrepresentation outlined in the finding of probable cause to suspend Petitioner’s law enforcement officer certification arises from the “Criminal Record Section” on the Report of Appointment/Application for Certification (Form F-5A) completed and signed by the Petitioner on or about April 29, 1997 as part of his application for employment with the New Hanover Regional Medical Center.

8. Specifically, the “Criminal Record Section” of the Report of Appointment/Application for Certification (Form F-5A), that Petitioner completed and signed in 1997, contains the following instruction:

ALL APPLICANTS & TRANSFERS READ AND COMPLETE THIS CRIMINAL RECORD SECTION

Each applicant must list any and all criminal charges regardless of the date of offense and the disposition (to include dismissals, not guilty, nol pros, PJC, or any other disposition where you entered a plea of guilty) Do not include minor traffic offenses (N.C.G.S. Chapter 20), but specifically include DWI, DUI, driving while under the influence of drugs, driving while license permanently revoked, or duty to stop in event of accident. If you list a charge(s), please attach certified and true copies of warrant(s) and judgment(s) for each offense, even if documentation and charges have previously been reported to this agency.

Petitioner included a charge of driving while impaired in which he was found guilty and a misdemeanor larceny charge that had been dismissed in response to the instructions on the Report of Appointment/Application for Certification (Form F-5A). However, Petitioner failed to list his conviction for possession of a malt beverage by a person under 21 years of age. (Respondent’s Exhibit 3)

9. Additionally, the Report of Appointment/Application for Certification Form (F-5A), completed by Petitioner in 1997, contains the following language just above the applicant’s signature:

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 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 3)

10. Court documents indicate Petitioner was charged on a citation for the offense of “possession of a malt beverage by a person under 21 years of age” on July 5, 1991 by the Department of Alcohol Law Enforcement in Pamlico County file number 91CR 719. Petitioner was represented by an attorney who entered a guilty plea on his behalf on August 8, 1991. (Respondent’s Exhibit 6)

11. The second material misrepresentation outlined in the finding of probable cause to suspend Petitioner’s law enforcement officer certification arises from the “Criminal Offense Record” section on the Report of Appointment/Application for Certification (Form F-5A) completed and signed by the Petitioner on or about July 8, 2000 as part of his application for employment with the Kure Beach Police Department.

12. Specifically, the “Criminal Record Section” of the Report of Appointment/Application for Certification (Form F-5A), that Petitioner completed and signed in 2000, contains the following instruction:

ALL APPLICANTS & TRANSFERS READ AND COMPLETE THIS CRIMINAL RECORD SECTION

Each applicant must list any and all criminal charges regardless of the date of offense and the disposition (to include dismissals, not guilty, nol pros, PJC, or any other disposition where you entered a plea of guilty) Do not include minor traffic offenses (N.C.G.S. Chapter 20), but specifically include DWI, DUI, driving while under the influence of drugs, driving while license permanently revoked, or duty to stop in event of accident. If you list a charge(s), please attach certified and true copies of warrant(s) and judgment(s) for each offense, even if documentation and charges have previously been reported to this agency.

Petitioner included a charge of driving while impaired in which he was found guilty and a misdemeanor larceny charge that had been dismissed in response to the instructions on the Report of Appointment/Application for Certification (Form F-5A). However, Petitioner failed to list the following criminal charge: possession of a malt beverage by a person under 21 years of age. (Respondent’s Exhibit 4)

13. The Report of Appointment/Application for Certification Form (F-5A), completed by Petitioner in 2000, contains the following language:

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.

(Respondent’s Exhibit 4)

14. The third material misrepresentation outlined in the finding of probable cause to suspend Petitioner’s law enforcement officer certification arises from question # 47 of the Personal History Statement (Form F-3) that Petitioner completed and signed as part of his application for certification with the Kure Beach Police Department on or about June 30, 2000.

15. Question number 47 reads as follows, "Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense? If “Yes,” please give details." Petitioner answered this question by listing: DWI- guilty and Misdemeanor Larceny- dismissed. However, Petitioner did not include the following criminal conviction: possession of a malt beverage by a person under 21 years of age. (Respondent's Exhibit 5)

16. Page eight (8) of the Personal History Statement Form (Form F-3), which was completed and signed by Petitioner on or about June 30, 2000 contains the following note just above question # 47:

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, 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 misstatement of facts 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 order.

(Respondent's Exhibit 5)

17. Page ten (10) of the Personal History Statement (Form F3) contains the following paragraph just above the Petitioner's notarized signature:

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)

18. In response to a request from Investigator Squires of the North Carolina Criminal Justice Education and Training Standards Division, Petitioner provided a written statement addressing why he failed to list his entire criminal record on the “Criminal Offense Record” sections on the Report of Appointments/Applications for Certification (Form F-5A) that he completed for the New Hanover Regional Medical Center in 1997, Kure Beach Police Departments in 2000, and the Personal History Statement (Form F-3) for Kure Beach Police Department in 2000. In his typewritten statement, Petitioner indicated the reason he left off his conviction for possession of a malt beverage by a person under 21 years of age, is that it was an oversight on his part. (Respondent’s Exhibit 7)

19. Petitioner, with his attorney’s assistance, responded to Respondent’s First Set of Interrogatories and Request for Admissions. Petitioner indicated in that response that the reason that he did not include the possession of a malt beverage by a person under 21 years of age is that “I didn’t think this charge was a criminal charge that needed to be disclosed since it was dealt with from start to finish, just like a minor traffic ticket.” (Respondent’s Exhibit 19)

20. The second basis for Respondent’s finding of probable cause to suspend Petitioner’s certification as a law enforcement officer is a result of his commission of the Class B misdemeanor of “filing a false report of theft of a motor vehicle” in violation of N.C.G.S. §20-102.1. (Respondent’s Exhibit 18)

21. Petitioner was arrested and charged by the North Carolina State Highway Patrol with the criminal offense of driving while impaired in violation of N.C.G.S. Section 20-138.1 and careless and reckless driving in violation of N.C.G.S. Section 20-140(b) on or about February 16, 2008. The offense stemmed from Petitioner being involved in a one car accident in a 2004 Jeep Liberty vehicle that belonged to him and his wife. (Respondent’s Exhibit 9)

22. The New Hanover County Sheriff’s office received a 911 telephone call that a vehicle had been in an accident on Woods Edge Road at 11:59 pm on February 15, 2008. Trooper Gurganus of the North Carolina State Highway Patrol responded to that area in order to investigate the accident. (Respondent’s Exhibit 9)

23. Upon arriving at the dispatched location, Trooper Gurganus discovered that the vehicle involved in the accident was a 2004 Jeep Liberty Vehicle. No driver was at the scene. The Jeep Liberty was locked and there appeared to be no forced entry into the vehicle. (Respondent’s Exhibit 8)

24. Trooper Gurganus interviewed the following witnesses in the area and obtained written statements from them regarding what they had observed about the accident and the driver of the vehicle, who was later identified as Petitioner.

a. Mr. Robert Divoky stated that “[s]hortly before midnite (2/15/08) I was working on my computer in a room facing Woods Edge RD & heard a car approaching at a very high rate of speed. I saw thru the windows as the car flew by, heard the brakes lockup & the car skid. I came outside as the driver got out & then ran past my house heading for S. College RD, I then called 911.”

b. Mr. Brandon M. Stark stated that he was “[s]tanding outside looking at a muffler when we heard footsteps and heavy breathing. We looked up and a man wearing jeans and a white t-shirt comes running by and then slows down and takes his shirt off. I thought it was weird for a man to be running in jeans.”

c. Mr. Ethan Fowler stated that “[a] guy with a white shirt, blue jeans ran by the house heavily breathing. The trooper brought suspect by so I could identify him.”

d. Mr. Brad Rackley stated that “[a] a guy with a white shirt, blue jeans ran by the house heavly [sic] breathing. The Trooper brought the suspect by so I could identify him.”

(Respondent’s Exhibit 8, pages 5-8)

25. At the time Petitioner was placed under arrest, he was wearing a white t-shirt, blue jeans and a baseball cap. (Respondent’s Exhibits 8, 10)

26. Trooper Gurganus indicated in the Driving While Impaired Report (DWIR) that the witnesses identified Petitioner at the scene and indicated that they were “100% positive” about the identification. (Respondent’s Exhibit 8, page 1)

27. Trooper Gurganus interviewed Petitioner at the scene of the accident. Petitioner said he had “a lot to drink” that night. In response to a question from the Trooper about where he was going when he wrecked the car, Petitioner stated “going to get some pussy.” When confronted by Trooper Gurganus with the fact that at least three people had identified Petitioner as running from the vehicle after the accident, Petitioner responded that he was “fucked up like a gourd” and did not answer other questions. At that time Petitioner was placed under arrest for driving while impaired. (Respondent’s Exhibit 9-10)

28. After placing Petitioner under arrest, Trooper Gurganus emptied Petitioner’s pockets. He recovered a pair of car keys and a pocket knife. Petitioner agreed to have those items returned to his wife.

29. When answering questions posed to him by Trooper Gurganus, Petitioner indicated that on a scale of one to ten that his level of impairment was a five. At approximately 1:53am on February 16, 2008 Petitioner registered a .13 on the intoxilyzer. (Respondent’s Exhibits 10, 18-19)

30. Petitioner telephoned the New Hanover County Sheriff’s Office, after returning home upon his release by the magistrate, at approximately 11:18 am on February 16, 2008, to request that a deputy respond to his residence located at 5000 Ranchwood Court in order for him to file a report that his vehicle had been stolen the night before. (Respondent’s Exhibit 12)

31. Deputy Jordan of the New Hanover County Sheriff’s Office was dispatched to Petitioner’s residence in response to Petitioner’s call regarding his vehicle. Upon arriving at Petitioner’s residence, Deputy Jordan prepared an Incident/Investigation Report which was signed by Petitioner. While at Petitioner’s residence, Deputy Jordan telephoned his Sergeant and gave Petitioner an opportunity to speak to him. Petitioner did speak to Deputy Jordan’s supervisor on the phone who told him that if the vehicle was not stolen he should not file the report.

32. Petitioner reported to Deputy Jordan that his vehicle had been stolen the night before. He indicated that he had been drinking with friends at his home until midnight at which time his last friend left his house. Petitioner said that he parked his car at the end of the driveway and left the keys in the ignition. Petitioner told Deputy Jordan that his friend called him to say that his car had been involved in an accident. Petitioner said he “was not driving the car between the time of the last person leaving his residence and the time of the accident.” (Respondent’s Exhibit 12)

33. Detective Cina of the New Hanover County Sheriff’s Office charged Petitioner with filing a false report of theft of a motor vehicle in violation of N.C.G.S. Section 20-102.1, date of offense February 16, 2008, for the report he made over the telephone to the dispatcher and to Deputy Jordan. (Respondent’s Exhibit 13)

34. Petitioner was convicted of driving while impaired on or about May 15, 2008. As part of his plea agreement, the charges of careless and reckless driving and filing a false report of theft a motor vehicle were dismissed. (Respondent’s Exhibit 9)

35. Petitioner responded to a request from Investigator Squires of the North Carolina Criminal Justice Education and Training Standards Division addressing his charge and conviction for driving while impaired. In his typewritten statement, Petitioner indicated he pled guilty to Driving While Impaired for an incident that occurred on February 16, 2008. He further stated that he “felt it to be in the best interest of my family and the Kure Beach Police Department for me to resign my position of K-9 Officer.” (Respondent’s Exhibit 11)

36. Petitioner responded to a request from Investigator Squires of the North Carolina Criminal Justice Education and Training Standards Division addressing his charge of filing a false police report of theft of a motor vehicle. In his typewritten statement, Petitioner stated:

In terms of the validity regarding the allegation of filing a false police report, I honestly believed that at the time my actions were justifiable. I am presently of the belief that my actions were the result of my emotional reaction to an unthinkable situation. At the conclusion of the internal investigation, I came to realize that the allegations against me could possibly be valid. It was never my intention to deceive any of the law enforcement agencies involved, and I wholeheartedly regret my reactions to the situation.

(Respondent’s Exhibit 15)

37. Respondent served Petitioner with the Respondent’s First Set of Interrogatories, request for Admissions, and Request for Production of Documents on October 28, 2009. By stipulation, Petitioner admitted Request for Admissions # 1-17 at the beginning of the hearing.

38. The pertinent questions, from the Requests for Admissions, each of which was stipulated as admitted, regarding the charges of driving while impaired and filing false report of theft of motor vehicle are as follows:

a. Do you admit to driving your 2004 Jeep Liberty when it was involved in an accident on or about the night of February 15, 2008 into the morning of February 16, 2008?

b. Do you admit that within hours before your arrest for driving while impaired that you were at your home with friends and family drinking alcohol?

c. Do you admit that after you began drinking on the occasion referenced in request for admission #9 that you and your wife, Rachel, got into a verbal argument?

d. Do you admit that while you were questioned by the North Carolina State Highway Patrol regarding where you were going when your vehicle was involved in an accident, you stated “I was going to get some pussy”?

(Respondent’s Exhibit 20, Requests for Admissions # 9-12)

39. Petitioner testified about his activities on the day that the accident occurred in which he was charged with driving while impaired. He indicated he got off work around 4:00 or 5:00 am, later attended a presentation at a Pender County school around 12:00 pm and then his neighbors came over that night to have a cookout. He indicated that two couples in his neighborhood came to his house that night. The neighbors included Gene and Beverly Creech and Kelly and Keith Dorn. Petitioner said the other couples went home around 7:30 pm to put their kids to bed and then returned to his home for the cookout. He said that the last person to leave at midnight was Mr. Creech. Mr. Creech had stayed after the other guests had left in order to help Petitioner clean up the garage where they had been having the cookout.

40. Petitioner stated that he then went inside and fell asleep on the couch. He said he thought the reason he went to the couch instead of his bedroom was in order to watch television. He stated the next thing he remembers is his friend Jason Cummings calling him to tell him that his car had been involved in an accident. According to his telephone records , the call from Cummings was at 12:09 am.

41. Petitioner testified that the accident scene was approximately one mile from his home.

42. Petitioner stated he does not remember driving his 2004 Jeep Liberty vehicle when it was involved in an accident. However, he states that he realizes now that he must have been driving based on the internal affairs investigation prepared by Kure Beach. When asked what evidence he was shown that convinced him that he must have been driving, Petitioner stated there was no one piece of evidence that convinced him. He stated that he trusts the opinion of Chief Cooper and Lt. Everhart so if they said he was driving, he must have been driving. When asked what Chief Cooper or Lt. Everhart told him that was different from what Trooper Gurganus had told him prior to his arrest for driving while impaired, Petitioner did not provide an answer.

43. Petitioner testified he did not remember where he was going when he was driving the vehicle. He indicated he told Trooper Gurganus that he “was going to get some pussy” because he was frustrated with the Troopers. When asked if the two Highway Patrolmen asked him the standard questions that he would have asked of a driving while impaired suspect, he answered yes. When asked specifically if any of their questions were out of the ordinary, he said no.

44. Petitioner provided a two page handwritten statement to Lt. Everhart during the internal affairs investigation detailing his arrest for driving while impaired and the events leading up to the arrest. (Respondent’s Exhibit 16)

45. Petitioner introduced seven letters of reference. (Petitioner’s Exhibits 1-7)

46. Petitioner had four character evidence witnesses testify on his behalf. First, Lt. Andrew Lee Everhart of the Kure Beach Police Department testified that he conducted the internal affairs investigation regarding Petitioner’s driving while impaired charge. Lt. Everhart went to the scene of the accident, obtained copies of the highway patrol reports, spoke to the State Highway Patrol Troopers involved in the investigation and reviewed Trooper Gurganus’ in-car camera. Lt. Everhart also had a K-9 search the area near the accident scene attempting to recover the keys to the Jeep Liberty with negative results. Lt. Everhart concluded his investigation within two to three days of the incident and reported his findings to Chief Cooper. His opinion was that the Petitioner was driving the Jeep Liberty when it was involved in the accident. Lt. Everhart described Petitioner as an excellent, significantly above-average officer.

47. Dennis Cooper, Chief of the Kure Beach Police Department also testified on behalf of the Petitioner. Chief Cooper testified he instructed Lt. Everhart to conduct the internal affairs investigation into the Petitioner’s charge of driving while impaired. He indicated that at the conclusion of the investigation that it was a “no brainer” that Petitioner had been driving the vehicle when it was wrecked. Chief Cooper described Petitioner as a stellar police officer who especially was superb at community relations.

48. Lt. Anthony Marcucilli of the Carolina Beach Police Department has known Petitioner since they attended Basic Law Enforcement Training (BLET) together in 1996. He is aware of the charges against Petitioner and is still in favor of him being hired with his department. He described Petitioner as an outstanding officer.

49. William Keith Younginer, Chief of the Carolina Beach Police Department indicated that he has no regrets about hiring Petitioner and would hate to see one mistake affect him forever.

Chief Younginer wants to retain Petitioner on his staff because of his ability to successfully handle the crowds and parties on the north end of Carolina Beach where many military personnel tend to gather on week-ends.

50. Under 12 NCAC 09A .0204(b)(6), 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.

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

52. Under 12 NCAC 09A .0204(b)(3), 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 a criminal offense or unlawful act defined in 12 NCAC 09A .0103 as a Class B misdemeanor.

53. Class B Misdemeanor is defined in 12 NCAC 09A .0103(23) as an act committed or omitted in violation of any common law, criminal statute, or criminal traffic code of this state that is classified as a Class B Misdemeanor as published by the North Carolina Department of Justice. A violation of N.C.G.S. §20-102.1, filing a false report of theft of a motor vehicle, is a Class B Misdemeanor.

54. Under 12 NCAC 09A.0205(b)(1), when the Commission suspends or denies the certification of a criminal justice officer, the period of sanction shall be not less than five years; however, the Commission may either reduce or suspend the period of sanction under Paragraph (b) of this Rule or substitute a period of probation in lieu of suspension of certification following an administrative hearing, where the cause of sanction is ... commission of a criminal offense other than those listed in Paragraph(a) of this Rule.

55. N.C.G.S. §20-102.1 states:

A person who knowingly makes to a peace officer or to the Division a false report of the theft or conversion of a motor vehicle shall be guilty of a Class 2 misdemeanor.

BASED UPON the foregoing Findings of Fact and upon the preponderance or greater weight of the evidence in the whole record, 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. Under N.C. Gen. Stat. §150B-29(a), 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. Furthermore, the administrative law judge shall decide the case based upon the preponderance of the evidence according to N.C. Gen. Stat. §150B-34(a).

3. Petitioner has the burden of proof in the case at bar. Petitioner has failed to show by a preponderance of the evidence that Respondent’s proposed suspension of Petitioner’s criminal justice officer certification is not supported by substantial evidence. (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))

MATERIAL MISREPRESENTATION

4. Petitioner’s assertion that he did not knowingly make material misrepresentations of information on his application forms by failing to list his entire criminal history, including his conviction for possession of a malt beverage by a person under 21 years of age, is not credible in light of all of the evidence, including Petitioner’s inconsistent statements.

5. A preponderance of the evidence supports the conclusion that Petitioner knowingly made material misrepresentations of information required for certification when he completed and signed the Report of Appointment/Application for Certification (Form F-5A) on or about April 29, 2007 as part of his application for employment with the New Hanover Regional Medical Center by failing to list his conviction for underage possession of a malt beverage by a person under 21 years of age in response to the Criminal Record Section.

6. A preponderance of the evidence supports the conclusion that Petitioner knowingly made material misrepresentations of information required for certification when he completed and signed the Report of Appointment/Application for Certification (Form F-5A) on or about July 8, 2000 as part of his application for employment with the Kure Beach Police Department by failing to list his 1991 conviction for underage possession of a malt beverage by a person under 21 years of age in response to the Criminal Record Section questions.

7. A preponderance of the evidence supports the conclusion that Petitioner knowingly made material misrepresentations of information required for certification when he completed and signed the Personal History Statement (Form F-3) on or about June 30, 2000 as part of his application for employment with the Kure Beach Police Department by failing to list his 1991 conviction for underage possession of a malt beverage by a person under 21 years of age in response to the Criminal Record Section questions.

8. The Report of Appointment/Application for Certification (Form F-5A) is a necessary and required part of the application process in order to receive law enforcement officer certification.

9. The Personal History Statement (Form F-3) is a necessary and required part of the application process in order to receive law enforcement officer certification.

COMMISSION OF CLASS B MISDEMEANOR

10. Petitioner’s assertion that he did not commit the offense of filing a false report of theft of a motor vehicle is not credible in light of all of the evidence presented for the following reasons:

(1) Petitioner claims he cannot remember driving the vehicle at the time of the accident and specifically indicates that he does not remember what occurred between midnight and 12:09 am on February 16, 2008. Petitioner does not provide an explanation for why he cannot remember those particular times. Petitioner does not claim that he received any injury in the accident or that he was impaired to such a level that would cause him to have memory failure.

(2) Petitioner’s claimed memory loss is contrary to the detailed statements that he provided to Trooper Gurganus at the time of his arrest, a detailed statement to Lt. Everhart later in the day of the accident, and under oath at the hearing of this matter. Specifically, Petitioner provided great detail regarding the events leading up to and after his arrest for driving while impaired. These details include a recitation of his activities throughout the day of the accident, the names of the party attendees and the time of their departure. It is not reasonable to believe that Petitioner could remember the details that he has provided but not be able to remember driving the vehicle when it was involved in an accident.

(3) By stipulation to Respondent’s Requests for Admissions, Petitioner has admitted getting into a fight with his wife prior to the accident occurring. Petitioner told Trooper Gurganus that he was “going to get some pussy.” This in itself is an admission to driving the vehicle when it was involved in an accident. This statement is also consistent with him being in a fight with his wife earlier in the night as opposed to Petitioner’s claim that he said it out of frustration after being questioned by Trooper Gurganus.

11. In light of these factors, Petitioner knowingly filed a false police report regarding the alleged theft of his motor vehicle.

12. Petitioner committed a Class B misdemeanor, on or about February 16, 2008, when he reported to the New Hanover County dispatcher and Deputy Jordan that his vehicle had been stolen when in fact it had not been stolen and he had been driving it when it was involved in an accident, in violation of N.C.G.S. §20-102.1.

13. Respondent’s finding of probable cause is supported by substantial evidence.

14. The findings of the Probable Cause Committee of the Respondent are supported by substantial evidence and are not arbitrary and capricious.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends that Respondent suspend Petitioner’s law enforcement officer certification for a period of five (5) years based upon Petitioner’s knowing material misrepresentations of information required for certification and for his commission of the Class B Misdemeanor of filing a false report of theft of a motor vehicle.

Because of the extraordinarily strong support of Petitioner’s past and present law enforcement employers, it is recommended that the Commission exercise its discretion to cause the period of suspension to be suspended for a period of two (2) years on condition that Petitioner not violate any law (other than infractions and minor traffic offenses) of this State or of any other state, any federal laws, any ordinances, any rules of this Commission, the Company and Campus Police Program, or the North Carolina Sheriffs’ Education and Training Standards Commission.

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.

This the 31st day of December, 2009.

____________________________

Beecher R. Gray

Administrative Law Judge

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