STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

COUNTY OF DUPLIN ADMINISTRATIVE HEARINGS

10 DOJ 0064

ROBERT CLAY THOMPSON, )

Petitioner )

) PROPOSAL FOR DECISION

)

)

v. )

)

NORTH CAROLINA SHERIFFS' )

EDUCATION AND TRAINING )

STANDARDS COMMISSION, )

Respondent. )

__________________________________

On May 12, 2010, Administrative Law Judge, Joe L. Webster, heard this case in Bolivia, North Carolina. This case was heard after Respondent requested, pursuant to N.C.G.S. ( 150B-40(e), the 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: Pro Se

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

ISSUE

Did Petitioner knowingly make a material misrepresentation of any information required for certification as a justice officer?

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 that the Petitioner received by certified mail, the proposed Denial of Justice Officer's Certification letter, mailed by Respondent Sheriffs' Commission on December 11, 2009.

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) states that the Sheriffs' Commission may deny 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; or,

(2) knowingly and designedly by any means of false pretense, deception, defraud, misrepresentation, or 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 part-time detention officer through the Sampson County Sheriff’s Office on May 18, 2009.

5. The Petitioner completed a Personal History Statement (Form F-3), on or about April 7, 2009, as part of his original employment application with the Sampson County Sheriff’s Office and in order to obtain certification as a justice officer from the Sheriffs’ Commission.

6. Question number 39 of the Sheriffs’ Commission Form F-3 asked the applicant to disclose whether or not he had ever used marijuana, and if so, to describe the circumstances. When the Petitioner completed this Personal History Statement, he indicated that he had previously used marijuana once at a party in 1983.

7. Petitioner is currently employed full-time as a correctional officer with the North Carolina Department of Correction. He is certified as such through the North Carolina Criminal Justice Education and Training Standards Commission. In order to gain such certification, Petitioner had to answer various background questions on a Criminal Justice Commission Form F-5A(DOC). In response to question number 3, which asked, "Have you ever used any illegal drugs?”, the Petitioner answered "No”. Petitioner swore to the accuracy of these answers on August 6, 2001.

8. When the staff for the Respondent reviewed and compared the Petitioner’s 2009 Personal History Statement with his previous 2001 DOC Form F-5A, it was determined that there was a noticeable discrepancy in the response to the question concerning the Petitioner’s prior use of marijuana. Additionally, staff for the Respondent discovered that the Petitioner had previously completed another Personal History Statement (Form F-3) on March 25, 1992 when the Petitioner was applying to become certified as a justice officer (deputy sheriff) with the Sampson County Sheriff’s Office. In response to question number 44 of this 1992 Personal History Statement, which asked the Petitioner if he had ever used marijuana, the Petitioner responded, "No”. Staff for the Respondent then requested the Petitioner submit a statement explaining the discrepancy between his response on the 2009 Personal History Statement and his conflicting response on the 1992 Personal History Statement and the 2001 Department of Corrections form.

9. The Petitioner responded in a sworn statement, dated September 18, 2009, explaining the discrepancies by stating, "... it must have been an oversight on my part. It’s never been my intention to conceal the fact that I smoked marijuana.”

10. The Probable Cause Committee of the Respondent subsequently found probable cause to believe that the Petitioner’s application for certification should be denied based upon his making a knowing material misrepresentation of information required for certification by not disclosing his prior use of marijuana on either his 1992 Personal History Statement or his 2001 Report of Appointment form.

11. In response to the Respondent’s first set of Request for Admissions, Interrogatories, and Request for Production of Documents, the Petitioner stated that he answered "No” on the Department of Corrections application form concerning prior drug use because he "evidently wasn’t paying attention to the questions.” Petitioner stated that he answered "No” on the 1992 Personal History Statement concerning his prior use of marijuana because, "It had to be an oversight on my part in not paying attention to detail.”

12. The Petitioner testified that he previously used marijuana as a senior in high school in 1983. Petitioner stated that a friend of his invited him to a party and he was drinking beer. He stated that someone passed around a marijuana cigarette and he tried it.

13. The Petitioner agrees that honesty and integrity are essential attributes to be a justice officer in North Carolina. The Petitioner expressed a desire to continue in the law enforcement profession. The Petitioner testified that he remembered his prior use of marijuana when he read question number 3 on the Criminal Justice Commission F-5A in 2001. He also remembered his use of marijuana when he answered question number 44 on the Sheriffs’ Commission Personal History Statement (Form F-3) that he completed in 1992.

14. The Petitioner completed basic law enforcement training in 1991. The Petitioner was employed as a law enforcement officer with the Sampson County Sheriff’s Office from 1992 to 1994. Between 1994 and 2001, the Petitioner worked in Newton Grove at a hog slat company. He was also self-employed during this time frame as a painter. Petitioner has been employed full-time with the North Carolina Department of Correction since 2001. In this capacity, Petitioner serves as a canteen supervisor. Petitioner handles the fixed assets at the Wayne County Department of Corrections facilities. Petitioner is active in his church. Petitioner’s church assists three children, ages 8, 10, and 12, with basic subsistence needs throughout the year. Petitioner is also active in school activities for his fifteen-year-old daughter.

15. Major Kenely Pickett of the Sampson County Sheriff’s Office testified on the Petitioner’s behalf. Major Pickett conducted the 2009 background investigation on the Petitioner. Petitioner is employed with the Sampson County Sheriff’s Office on a part-time basis and is paid for his time. Major Pickett testified that he "grills” each applicant with the Sampson County Sheriff’s Office on their prior use of illegal drugs. Petitioner admitted his 1983 use of marijuana to Major Pickett. When the discrepancy concerning the Petitioner’s use of marijuana was disclosed, Petitioner explained to Major Pickett that he had answered "no” on the previous forms because he felt that his prior use was experimentation and therefore didn’t constitute the "use” of marijuana. Major Pickett testified that he wants the Petitioner to continue his employment with the Sampson County Sheriff’s Office. He has known the Petitioner for ten years and trusts him. The Petitioner scored the second highest test score in the detention officer certification class in 2009.

16. The Petitioner’s explanation concerning his omission of his previous use of marijuana is that the omission had to be an "oversight” and he was "not paying attention to detail”. However, this explanation is inconsistent with his otherwise accurate and detailed answers to all questions on the 1992 Personal History Statement and the 2001 Report of Appointment form. As to each of these forms, Petitioner acknowledged that he took these forms home with him in order to have ample time to answer the questions. These questions are extensive and ask for detailed information concerning the Petitioner’s background. With the exception of the question concerning his prior use of marijuana, all questions are answered completely and accurately. It is implausible that an individual who is as articulate and educated as Petitioner could answer all questions accurately, but then consistently answer the question concerning the use of marijuana inaccurately on two separate occasions. These factors lead to the conclusion that the Petitioner made a knowingly material misrepresentation on his 2001 Report of Appointment form (Form F-5A) and on his 1992 Personal History Statement (Form F-3) by failing to disclose his previous use of marijuana.

CONCLUSIONS OF LAW

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

2. The Petitioner knowingly made a material misrepresentation of information required for certification by failing to disclose his prior use of marijuana from his 2001 Criminal Justice Commission form F-5A and his 1992 Personal History Statement form F-3.

3. The Petitioner’s knowingly material misrepresentation of information required for certification constitutes a violation of 12 NCAC 10B .0204(c)(1) and (2). The Respondent’s proposed denial of the Petitioner’s application for certification is supported by substantial evidence. Pursuant to 12 NCAC 10B .0205, the Respondent has the discretion to lessen or reduce this period of sanction in appropriate cases.

PROPOSAL FOR DECISION

Based upon the foregoing findings of fact and conclusions of law, the undersigned recommends that Respondent deny the Petitioner’s justice officer certification for two years. The undersigned further recommends that this period of denial be suspended on the condition that the Petitioner not violate any local, state or federal laws or rules of the Commission for a period of two years.

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 21st day of July, 2010.

________________________________

Joe L. Webster

Administrative Law Judge

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