STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF JOHNSTON

ROBERT LEE WALKER,

Petitioner,

v.

NORTH CAROLINA SHERIFFS’

EDUCATION AND TRAINING

STANDARDS COMMISSION,

Respondent.

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IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

05 DOJ 1670

PROPOSAL FOR DECISION

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THIS MATTER came on for hearing on February 14, 2006, before Administrative Law Judge Sammie Chess, Jr., in Fayetteville, 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 over the hearing of a contested case under Article 3A, Chapter 150B of the North Carolina General Statutes.

APPEARANCES

Petitioner: Pro Se

Respondent: John J. Aldridge, III, Special Deputy Attorney General, Attorney for Respondent

ISSUE

Did Petitioner knowingly make a material misrepresentation of information required for certification?

FINDINGS OF FACT

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 the Petitioner received by certified mail the proposed denial of Justice Officer Certification letter mailed by Respondent Sheriffs’ Commission on September 13, 2005.

2. The North Carolina Sheriffs’ Education and Training Standards Commission (hereinafter referred to as the Sheriffs’ Commission) has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10B, to certify justice officers and to deny, revoke, or suspend such certification.

3. 12 NCAC 10B .0204(c)(1) and (2) provides that the Sheriffs’ Commission may revoke the certification of a justice officer when the Commission finds that the applicant has:

(1) Knowingly made a material misrepresentation of any information required for certification or accreditation from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission;

(2) Has knowingly and designedly by any means of false pretense, deception, defraud, misrepresentation, cheating whatsoever obtained or attempted to obtain credit, training or certification from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission.

4. The Petitioner was appointed as a detention officer with the Johnston County Sheriff’s Office on January 16, 1997. The Petitioner completed a Report of Appointment Form in furtherance of his application to become a detention officer. The Petitioner acknowledged reading this form prior to signing it.

5. The attestation above the Petitioner’s name on this Report of Appointment Form reads, in pertinent part:

“I further understand and agree that any omission, falsification, or misrepresentation of any fact or portion of such information can be the sole basis for termination of my employment and/or denial or revocation of my certification at any time; now or later.”

6. The Petitioner, on December 9, 1996, also completed a Personal History Statement (Form F3) as part of his certification application through the Johnston County Sheriffs’ Office.

7. The attestation above the Petitioner’s signature on the Personal History Statement reads:

“I hereby certify that each and every statement made on this form is true and complete and understand that any misstatements or omission of information may subject me to disqualification or dismissal.”

The Petitioner acknowledged reading the Personal History Statement prior to completing and signing it.

8. Question No. 45 of the Personal History Statement asks, “Have you ever used any other illegal drugs, including but not limited to opiates, pills, heroin, cocaine, crack, LSD, etc.? In response to this question, the Petitioner answered “No”.

9. Based upon the information submitted by the Petitioner, through the Johnston County Sheriff’s Office, the Respondent issued the Petitioner general detention officer certification on February 4, 1998.

10. On October 21, 1998, the Petitioner was separated from the Johnston County Sheriff’s Office due to, “Failure to perform duties as required -- continuous domestic problems resulting in negligence on the job.”

11. On December 7, 2004, a background investigation was conducted on the Petitioner by the Wake County Sheriff’s Office in furtherance of his application for employment as a detention officer through that agency. The Wake County Sheriff’s Office found in the course of this investigation that the Petitioner’s ex-wife had precipitated his problems which resulted from his dismissal with the Johnston County Sheriff’s Office, and these problems continued after his separation from the sheriff’s office. A background investigator found that the Petitioner’s ex-wife, while being bipolar, would arrive at the Petitioner’s various job sites and threaten the Petitioner and his co-workers with physical harm. Additionally, the background investigator found that the Petitioner’s ex-wife was constantly writing bad checks and buying various items on credit. The Petitioner is now divorced from his ex-wife and has remarried. The Background Investigator for the Wake County Sheriff’s Office concluded, “He has had more than his share of misfortunes, mostly brought on by his ex-wife. He needs a break, and I strongly recommend that Wake County Sheriff’s Department give him the opportunity to prove himself.”

12. The Petitioner was thereafter appointed as a detention officer through the Wake County Sheriff’s Office on January 5, 2005. In furtherance of this Application for Certification, the Petitioner again completed a Personal History Statement (Form F3) on January 5, 2005. This Personal History Statement contains the same attestation above the Petitioner’s signature as the previous Johnston County Personal History Statement.

13. In response to Question No. 45, again asking the Petitioner if he had “ever used any other illegal drugs, including but not limited opiates, pills, heroin, cocaine, crack, LSD, etc.”, the Respondent answered “Yes”. The Petitioner went on to explain, “I tried cocaine when I was about 20 years old”.

14. In evaluating the Petitioner’s Application for Certification through the Wake County Sheriff’s Office, Diane Konopka, Deputy Director for the Respondent, compared the Petitioner’s responses on his Wake County Personal History Statement with those of his Johnston County Personal History Statement. It was at this point in time that she noticed the discrepancy in the Petitioner’s answer to Question No. 45 asking about his use of cocaine. She asked the Petitioner for an explanation as to this discrepancy. By letter dated August 22, 2005, the Petitioner responded to Ms. Konopka’s request and stated that he had listed “No” on the Johnston County Sheriffs’ Office Personal History Statement when asked about his previous use of cocaine and that the reason he had done so was because at the time he needed a job to support his family. He stated that he made a decision to list his use of cocaine on the Wake County Sheriff’s Office Personal History Statement because he has now become a “born again believer” and he is active in his local church. He stated that he felt he had an obligation to now tell the truth about his previous use of cocaine. The Petitioner stated in this letter that he felt that if he had put down that he had used cocaine in 1996 on the Johnston County Sheriffs’ Office Application that he would not have gotten the job.

15. In subsequent written submissions, the Petitioner consistently responded that the reason for his omission of his previous use of cocaine from the Johnston County Sheriff’s Office Application was because he needed the job and was afraid he would not get it if he had listed his use of cocaine. The Petitioner went on to elaborate in each subsequent submission that he felt he now had a moral obligation to tell the truth about his use of cocaine because of his reaffirmed belief in Jesus Christ. The Petitioner testified at the administrative hearing that he is now remarried, is very active in his church with his wife, and would like very much to continue with a career as a detention officer.

16. Captain Willie Teasley is a 24 year veteran of the Wake County Sheriff’s Office and testified that he has known the Petitioner since he has been employed with the Wake County Sheriff’s Office. Captain Teasley stated that the Petitioner was a great person to work with and that his experience with the Petitioner on the job has been that he is very dependable and always shows up to work on time. He stated that he is impressed by Mr. Walker. He has no knowledge of Mr. Walker’s off-duty life and supports the Commission’s rules.

17. Pastor Norbert E. Simmons testified on behalf of the Petitioner and stated that he is the Pastor of Deeper Life Ministries and has known the Petitioner for approximately 4 years. Pastor Simmons testified that he felt the Petitioner was an outstanding man who had demonstrated a level of commitment to the church and to his family and new wife. Pastor Simmons testified that the Petitioner told him about his omission of his use of cocaine on the Johnston County Application and stated that the reason he listed his use of cocaine on the Wake County Application was because he felt he had an obligation to be honest.

CONCLUSIONS OF LAW

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

2. The Petitioner knowingly made material misrepresentations of information required for certification by failing to disclose his previous cocaine use from his December 9, 1996 Johnston County Sheriff’s Office Personal History Statement, in violation of 12 NCAC 10B .0204(c)(1) and (2).

3. The Respondent’s proposed revocation of the Petitioner’s Justice Officer Certification is supported by substantial evidence.

4. Pursuant to 12 NCAC 10B .0205(2)(h), the Commission may either reduce or suspend the period of sanction or substitute a period of probation in lieu of revocation, suspension or denial following an administrative hearing. This authority may be utilized by the Commission when extenuating circumstances brought out at the administrative hearing warrant such a reduction or suspension in the discretion of the Commission.

5. The undersigned submits to the Respondent that such discretion is appropriate in this case due to the Petitioner’s self-disclosure of the use of cocaine on the 2005 Wake County Sheriff’s Office Application and the circumstances surrounding the Petitioner’s efforts to overcome the adverse actions of his former spouse and still support his family.

PROPOSAL FOR DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends the Respondent deny the Petitioner’s Justice Officer Certification for a period of 5 years based on his knowing material misrepresentations of information required for certification and that this 5 year period of denial be suspended on the condition that the Petitioner serve a 5 year period of probation and not violate any local, state, federal laws or 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 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 Sheriffs’ Education and Training Standards Commission.

This the 28th day of February, 2006.

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Sammie Chess, Jr.

Administrative Law Judge

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