COUNTY OF ORANGE
LARRY KEVIN DEAN,
Petitioner
v.
N.C. CRIMINAL JUSTICE
EDUCATION AND TRAINING
STANDARDS COMMISSION,
Respondent. / )
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ADMINISTRATIVE HEARINGS
99 DOJ 0610
RECOMMENDED DECISION
THIS CONTESTED CASE came on for hearing on January 10-11, 2000, in Raleigh, North Carolina before Administrative Law Judge Beryl E. Wade.
APPEARANCES
Richard C. Hendrix, North Carolina Police Benevolent Association, represented Petitioner; Robin P. Pendergraft, Special Deputy Attorney General represented the North Carolina Criminal Justice Education and Training Standards Commission.
ISSUES
Whether the Petitioner violated the Commission’s rules by committing the criminal offense of “Willfully Failing to Discharge Duties” in violation of N.C.G.S. § 14-230, in that he willfully omitted, neglected, or refused to discharge any of the duties of his office while employed as a supervising officer with the Hillsborough Police Department.
RULES/STATUTES
12 NCAC 9A .0103(21)(b)
12 NCAC 9A .0204(b)(3)(A)
N.C.G.S. § 14-230
FINDINGS OF FACT
Stipulated Facts
1. Both parties are properly before this Administrative Law Judge, 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 February 23, 1999.
2. The North Carolina Criminal Justice Education and Training Standards Commission (hereinafter referred to as the “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 criminal justice officers and to deny, revoke or suspend such certification.
3. Petitioner successfully completed the Basic Law Enforcement Training course at Durham Technical Community College on January 15, 1988.
4. Petitioner was issued a Probationary Certification (PRH 244171573) by the Sheriffs’ Education and Training Standards Commission effective October 19, 1987 to serve as Deputy Sheriff with the Orange County Sheriff’s Office.
5. Petitioner was issued a General Certification on October 31, 1988 (GNH 244171573) by the North Carolina Sheriffs’ Commission to serve as a Deputy Sheriff with the Orange County Sheriff’s Office.
6. Petitioner was appointed Deputy Sheriff with the Orange County Sheriff’s Office on November 16, 1987.
7. Petitioner separated from Orange County Sheriff’s Office on May 8, 1991.
8. Petitioner applied with the Commission for certification as a Law Enforcement Officer with the Hillsborough Police Department on November 15, 1991.
9. Petitioner was issued a General Certification (GNA 244171573) on November 15, 1991 by the Commission to serve as a Law Enforcement Officer with the Hillsborough Police Department.
10. On September 14, 1999, Petitioner resigned from the Hillsborough Police Department to take a full-time position as the Breath Alcohol Testing Mobile Unit Coordinator with the Division of Health and Human Services. He maintains Reserve Law Enforcement Officer status with the Hillsborough Police Department.
Adjudicated Facts
11. Petitioner is 37 years old Veteran Law Enforcement Officer with thirteen years of experience.
12. In November 1991, the Town of Hillsborough hired Petitioner as a full time Law Enforcement Officer and in March 1994 he was promoted to the position of Corporal and became the Department’s Training Officer. He continued to serve as Training Officer after his promotions to Sergeant in February or March, 1997 and Lieutenant in 1998. (Vol. I, Tpp. 64-65).
13. In January 1998, Petitioner was a Sergeant and the supervisor of “A” squad with the Hillsborough Police Department.
14. On February 23, 1999, Petitioner received written notification from David C. Cashwell proposing suspension of his law enforcement certification for committing the Class B misdemeanor of, “Willfully failing to discharge duties”, a criminal offense under 14-230 of the N.C. General Statutes.
15. As a basis for this allegation, the Commission cites that Petitioner:
a. Failed to report to your superior the fact that several officers were having sexual encounters “on-duty”;
b. Failed to report to your superior the fact that several squad members were participating in a sexual initiation which involved receiving oral sex from female subjects while on duty;
c. Failed to promptly report to your superior officer the fact that Officer K.C. Fansler had obtained an audio tape that contained an illegally recorded telephone conversations between Sgt. Bruce Gordon and a female subject;
d. Interfered in a police investigation of the illegal taping incident by telling Police Explorer Scott Thomas that he did not have to talk to anybody, to include not answering the door or the phone, and by allowing a subordinate to similarly instruct Thomas while in your presence; and
e. Failed to report to your superior officer the information you acquired regarding Officer Fansler's and Explorer Thomas’ illegal taping activities and their attempts to cover up such activity.
16. Petitioner was assigned to work on the department’s “A” Squad and supervised approximately five (5) officers. Around September 1996, Petitioner became the ranking supervisor for that squad. In 1997, the squad included Officers Buddy Parker, Mark Brewer, Lacy Wilson, Myron Bigelow and David Lineberry. In either December 1997 or January 1998, Officer Kevin Fansler was moved to Petitioner’s “A” Squad. Petitioner’s immediate supervisor was Police Chief Nathaniel Eubanks. (Vol. I, Tpp. 65-67).
17. In 1997 and 1998, the Hillsborough Police Department employed approximately 20 sworn officers. Petitioner described the department as “small, close-knit.” (Vol. I, Tp. 67).
18. Petitioner’s duties as supervisor including being in charge of the shift, supervising all employees under him, approving daily reports, checking accident reports, etc. Included in this role as supervisor was the duty to report any misconduct by the officers under him. Petitioner had the authority to take some disciplinary action against an officer under his supervision. (Vol. I, Tpp. 67, 69).
19. The Hillsborough Police Department has a Policy and Procedure Manual, which governs the manner in which individual police officers must conduct themselves. The manual contains sections on definitions, rules and regulations, discipline, and standard operating procedures. Newly hired officers are provided a copy of the manual and a copy of every update or change in policy thereafter is given to all officers. (Respondent’s Exhibit #2, Vol. I, Tpp. 70-71).
20. The Hillsborough Police Department Manual provides the following directive under the heading, “Exercise of Authority:”
All officers holding any command or supervisory rank within the Department have authority over all officers of the Department of any subordinate rank. Command or supervision will ordinarily be exercised only within the scope of the command or supervisory officer’s assignment. In an emergency or when delay necessary to notify the subordinate’s proper superior may result in damage to the Department’s interest, any command or supervisory officer may direct or correct the activity of a subordinate officer out side the normal scope of his assignment, he shall be held fully responsible for his actions. (Respondent’s Exhibit #2, p. 4).
21. General Order #1 of the Hillsborough manual, paragraph one (1) directs the officers as follows:
Acts or Statements by Officers: Officers shall not perform any act or make any statement, oral or written, for publication or otherwise which tends to bring the Department or its administrative officers disrepute or ridicule, or which destructively criticizes the Department or its administrative officers in the performance of their official duties, or which tends to disrupt or impair the performance of official duties and obligations of officers of the Department, or which tends to interfere with or subvert the reasonable supervision of proper discipline of officers of the Dept. (Respondent’s Exhibit #2, p. 14).
22. Paragraph 39 of General Order #1 requires officers to report violations of laws, ordinances, rules or orders:
Members knowing of other members or employees violating laws, ordinances, or rules of the Department, or disobeying orders, shall report same in writing to his commanding officer or the Chief of Police through official channels. If an officer or employee believes the information is of such a nature of gravity that it must be brought to the immediate attention of the Chief of Police, official channels may be bypassed, and he may report such infractions directly to the Chief of Police. (Respondent’s Exhibit #2, p. 19).
23. Officer Kevin Fansler was the department’s canine officer and was transferred from “B” squad to Petitioner’s squad in late 1997 or early 1998. According to Chief Eubanks, at this time the department and public trusted Officer Fansler.
24. By mid-March 1998, Officer Fansler began telling Petitioner of on duty sexual activity and sexual initiations that were occurring on “B” squad. Petitioner did not report this information at the time because Petitioner considered these rumors to be unsubstantiated. These rumors were widespread within the department and in the general public for sometime.
25. There was a rivalry and dislike between Petitioner and his squad, and members of “B” squad.
26. During this time period, Officer Fansler approached Petitioner with a tape recording of a conversation between a female and Sgt. Bruce Gordon of “B” squad, which suggested that Sgt. Gordon, was arranging sexual contact while on duty. Officer Fansler played a portion of the tape for Petitioner. The tape also contained negative comments by Sgt. Gordon about some “A” squad members, including Petitioner.
27. When questioned by Petitioner, Officer Fansler stated that a friend gave him the tape. Petitioner did not know at the time that the tape was illegally recorded or the circumstances under which it was made.
28. Petitioner instructed Officer Fansler to take the tape to Chief Eubanks.
29. A short time later, Officer Fansler informed Petitioner that he had spoken to the Chief and played the tape. Chief Eubanks returned the tape to Officer Fansler. Officer Fansler told Petitioner that the Chief was investigating and “not to say anything”. Petitioner believed Officer Fansler had fully and truthfully informed the Chief that Petitioner was aware of the tape. Since there was an on-going investigation, Petitioner assumed that the Chief would contact him if he needed any input.
30. On April 2, 1998, Petitioner and his squad attended a training class at Durham Community College. Before leaving the Department, Chief Eubanks called Officer Fansler into his office.
31. On the ride to class, Officer Fansler appeared visibly upset. He told Petitioner and the other officers present that Chief Eubanks had confronted him about a traffic stop of Scott Thomas that had occurred that morning and that Scott had “spilled the beans on him” concerning the tape recordings.
32. At that time, Petitioner began to realize that Officer Fansler had been untruthful concerning the origins of the tape. It was several more weeks before he was able to verify whether the recordings by Officer Fansler were illegal.
33. During a class break, Officer Fansler contacted Scott Thomas and arranged to meet him for lunch at the Guess Road Arby’s in Durham.
34. Subsequent conversations with Officer Fansler that morning concerned whether Officer Fansler may be disciplined. Petitioner told Officer Fansler that, “when you lie, the Chief did not take kindly to that and I don’t know what to tell you.”
35. At the lunch break, Petitioner, Officer Brewer and Parker went to Arby’s and met Officer Fansler and Scott Thomas. Everyone sat together. Officer Fansler asked Scott Thomas to tell everyone what had happened during the traffic stop the night before.
36. Scott Thomas relayed the events of the previous night. He informed everyone that he had been in the Department parking lot at approximately 1:00 am with a video camera looking at license plates when he was confronted by the town manager, Eric Peterson. Scott Thomas left the area, but was stopped a short time later by Officer Jeff Harwood.
37. Once stopped by Officer Harwood, Officer Sisk arrived as back up. Sgt. Gordon also arrived on the scene. Scott Thomas testified that Sgt. Gordon was angry, cursed at him and threatened him about taping. Scott Thomas was upset at the way he was treated by Sgt. Gordon. The officers searched Scott Thomas’ truck with his permission for tapes. Scott Thomas had a video camera, tape recorder and scanner in his vehicle. Thomas arrived home around 6:00am.
38. Officer Fansler asked Petitioner whether he thought the vehicle stop was a Fourth Amendment violation. Officer Fansler asked Petitioner “what would you do?” Petitioner stated that he did not know whether the stop was a Fourth Amendment violation, but Scott Thomas might want to talk to a lawyer.
39. Thomas was nervous, scared and was looking for help and insight on what could possibly happen to him.
40. Thomas said he had been questioned in his vehicle and at the Department about taping. He told Officer Sisk, that the taping had occurred a “couple of times”. Petitioner testified that Officer Fansler replied, “Why don’t you just tell it happened only once?” Officer Fansler then stated to the effect, “Well, if you have already told that, I don’t guess it makes any difference now”.
41. Petitioner believed Officer Fansler’s statement was improper and knew that Thomas would only get in worse trouble if he attempted to recant his previous statement. Petitioner knew that the Chief was going to talk to Fansler when they got back and that the Chief would get to the bottom of it. Petitioner also knew that he would be speaking to the Chief about this incident.
42. Officer Fansler told Thomas that he did not have to answer his door or his telephone. Petitioner understood that statement as informing Scott Thomas of his rights. Scott Thomas testified that he believed that Fansler was letting him know what he had a right to do.
43. Scott Thomas stated that Petitioner did not encourage him to not cooperate with the department. He understood Petitioner’s comments to be informing him of his rights.
44. The squad returned to class. Petitioner continued to tell Officer Fansler to tell the Chief the truth. Petitioner believed that Officer Fansler’s primary concern was the impact all this would have on his (Fansler’s) job.
45. Upon return to the Department, Officer Fansler talked to the Chief for approximately 35-45 minutes. Petitioner then drove Officer Fansler home. Petitioner testified that he did not speak to the Chief that evening about the incident at Arby’s because he thought it more important at the time that Officer Fansler be given the opportunity to tell the Chief what went on and come clean.