STATE OF NORTH CAROLINA



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

| | |ADMINISTRATIVE HEARINGS |

|COUNTY OF WAKE | |04 DOJ 0490 |

| | | |

|LISA ANNE WEAVER, | | |

|Petitioner, |) | |

| |) | |

|v. |) |DECISION |

| |) | |

|NORTH CAROLINA CRIMINAL JUSTICE EDUCATION AND TRAINING |) | |

|STANDARDS COMMISSION, |) | |

|Respondent. |) | |

| |) | |

| |) | |

On August 24, 2004, Administrative Law Judge Beryl Wade heard this case in Raleigh, North Carolina. This case was heard after Respondent requested, pursuant to N.C.G.S. § 150B-40(e), designation of an Administrative Law Judge to preside at the hearing of a contested case under Article 3A, Chapter 150B of the North Carolina General Statutes.

APPEARANCES

Petitioner: Lisa Weaver, pro se

Respondent: Lorrin Freeman

Assistant Attorney General

Department of Justice

Law Enforcement Liaison Section

P.O. Box 629

Raleigh, N.C. 27602-0629

ISSUE

Did Petitioner fail to satisfactorily complete the minimum in-service firearms training and qualifications program during the 2003 calendar year as required in 12 NCAC 9E .0106(a)?

FINDINGS OF FACT

1. All parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, that all parties received notice of hearing, and that Petitioner received by certified mail the Notice of Summary Suspension of Law Enforcement Officer Certification letter mailed by Respondent Commission on February 4, 2004. (Respondent’s Exhibit 1)

2. The North Carolina Criminal Justice Education and Training Standards Commission (hereafter referred to as the Criminal Justice 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. Pursuant to Criminal Justice Commission Rule 12 NCAC 09A. 0204 (b)(11) “[t]he 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 (11) fails to satisfactorily complete the minimum in-service training requirements as prescribed in 12 NCAC 09E.”

4. 12 NCAC 09A .0206(a)(2) provides that the Commission may summarily suspend the certification of a criminal justice officer when “the certified officer fails to satisfactorily complete the minimum in-service training requirements as prescribed in 12 NCAC 9E.”

5. “All certified law enforcement officers shall be required to qualify with their individual and department-approved service handgun(s) a minimum of once each calendar year” under 12 NCAC 09E .0106(a).

6. 12 NCAC 09E .0107 provides that an officer whose certification has been suspended for failure to qualify with his or her firearm may be reinstated within twelve months. The requirements for reinstatement are that the officer complete the forty-eight hour block of firearms training provided for in Basic Law Enforcement Training within a twelve month period following suspension of certification and that the head of the agency with who the officer is employed request that the officer’s certification be reinstated.

7. Petitioner was issued General Certification (GNA 245234298) by the Respondent on May 6, 1993 to serve as a law enforcement officer with the State Capitol Police Department. (Respondent’s Exhibit 3)

8. On July 24, 1995, Petitioner completed a Report of Appointment/Application for Certification (Commission Form F-5A) with the Fuquay-Varina Police Department. (Respondent’s Exhibit 5)

9. On January 15, 2004, Respondent received notification from Interim Chief of Police for the town of Fuquay-Varina, Jerry Phillips that Petitioner had failed to complete the required annual firearm qualification during the 2003 calendar year. (Respondent’s Exhibit 8)

10. Under procedures adopted by the Respondent, if requested by the employing agency, the Director of the North Carolina Criminal Justice Education and Training Standards Commission may not summarily suspend the certification of an officer who fails to complete firearms qualification if the failure to complete is due to accident, illness, extended educational leave, or other legitimate reason beyond the officer’s control. (Respondent’s Exhibit 2)

11. Respondent did not receive a request for an exemption for Petitioner from Interim Chief Phillips or any designated representative for the Fuquay-Varina Police Department for the calendar year 2003.

12. In response to Respondent’s FIRST SET OF INTERROGATORIES, REQUEST FOR ADMISSIONS, and REQUEST FOR PRODUCTION OF DOCUMENTS TO PETITIONER, Petitioner admitted that she did not complete firearms qualification for the year 2003 and that she did not receive any exemption from the requirement that she qualify during the calendar year. (Respondent’s Exhibit 10)

13. Petitioner has not completed firearms qualification as required under 12 NCAC 09E .0106 since 2001. In 2002 she received a medical exemption from the requirement that she complete firearms qualification at the request of the Chief for the Fuquay-Varina Police Department. (Respondent’s Exhibit 6 and 7)

14. Petitioner has not actively worked as a law enforcement officer since 2002 due to a sustained injury to her back. She has remained employed with the Fuquay-Varina Police Department but has been out of work under worker’s compensation.

15. Petitioner has agreed to resign employment from the Fuquay-Varina Police Department as part of a pending law suit with that agency and does not have any current plans to seek employment with a different law enforcement agency.

16. Petitioner wishes to maintain her law enforcement certification just in case at some time in the future she is able to return to work as a law enforcement officer.

17. Petitioner has been released from the care of Dr. William Lestini of Triangle Spine and Back Care Center by whom she was treated following her injury with no further plans for follow-up. Dr. Lestini has indicated that Petitioner should avoid any employment that requires physical restraint of another person. Dr. Lestini has recommended over-the counter medication and has not recommended any surgery. (Respondent’s Exhibit 9)

CONCLUSIONS OF LAW

1. The parties are properly before the undersigned Administrative Law Judge and jurisdiction and venue are proper.

2. Pursuant to Criminal Justice Commission Rule 12 NCAC 09A. 0204 (b)(11) “[t]he 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 (11) fails to satisfactorily complete the minimum in-service training requirements as prescribed in 12 NCAC 9E.”

3. 12 NCAC 09A .0206 provides that the Commission may summarily suspend the certification of a criminal justice officer when “the certified officer fails to satisfactorily complete the minimum in-service training requirements as prescribed in 12 NCAC 9E.”

4. Petitioner has failed to satisfactorily complete the minimum in-service training requirements as prescribed in 12 NCAC 9E in that she has failed to meet that requirement set forth in 12 NCAC 09E .0106(a) that “all certified law enforcement officers shall be required to qualify with their individual and department-approved service handgun(s) a minimum of once each calendar year”.

PROPOSAL FOR DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends Respondent Criminal Justice Commission suspend Petitioner’s law enforcement certification indefinitely.

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. N.C.G.S. § 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 29th day of October, 2004.

_____________________________

Beryl Wade

Administrative Law Judge

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