State of North Carolina in the Office Of s18

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF PERSON 03 DOJ 1701

Shelton W Belch
Petitioner
vs.
N. C. Sheriffs' Education and Training
Standards Commission
Respondent / )
))
)
)))) / DECISION

APPEARANCES

For Petitioner: Shelton Wayne Belch, Pro Se

6217 Old NC 86

Chapel Hill, NC 27516

For Respondent: Ashby T. Ray

Assistant Attorney General

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Whether the Respondent has just cause to deny Petitioner’s justice officer certification?

RULES AT ISSUE

12 NCAC 10B .0204(c)(1)

12 NCAC 10B .0204(c)(2)

12 NCAC 10B .0205 (2)(b)

12 NCAC 10B .0205(h)

FINDINGS OF FACT

Adjudicated Facts

1. On or about March 3, 2003, Petitioner applied for a position with the Orange County Sheriff’s Office. As part of the application process Petitioner completed a Personal History Statement (Form F-3).

2. Question number 47 of the Personal History Statement (Form F-3) asks if Petitioner has ever been arrested for, or charged with any crimes, other than minor traffic offenses.

3. In response to question number 47 on the Personal History Statement (Form F-3) for the Orange County Sheriff’s Office, Petitioner answered “YES” and listed, “Duck hunting with shotgun/Hunt ducks w/o stamp.” Petitioner was charged with these offenses in 1989.

4. Stephen Hyer is an Investigator and Certification Specialist with the North Carolina Sheriff’s Education and Training Standards Commission. Mr. Hyer reviewed Petitioner’s Personal History Statement (Form F-3) for the Orange County Sheriff’s Office as part of his regular investigation of an application for certification.

5. During the course of his review of Petitioner’s file, Mr. Hyer discovered that Petitioner had worked for other law enforcement agencies, and had completed Personal History Statement’s (Form F-3) and other required forms for each of those agencies.

6. Mr. Hyer compared Petitioner’s answers on the Personal History Statement (Form F-3) for the Orange County Sheriff’s Office with the Personal History Statements (Form F-3) that Petitioner had completed for the Ahoskie Police Department on or about February 14, 2001, the Winton Police Department on or about December 21, 2000 and the Hertford County Sheriff’s Department on or about September 16, 1995.

7. Mr. Hyer also reviewed Report of Appointment (Form F-5A) forms that were signed by Petitioner for the Ahoskie Police Department and the Winton Police Department.

8. On the Personal History Statement (Form F-3) for the Ahoskie Police Department, which Petitioner completed and signed on or about February 14 2001, question number 47 is preceded by the following language:

NOTE: Include all offenses other than minor traffic offenses. . . Answer all of the following questions completely and accurately. Any falsification or misstatements of fact 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.

9. In response to question number 47 on the Personal History Statement (Form F-3) for the Ahoskie Police Department, which asks, “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?”, Petitioner responded by checking the “NO” box.

10. On the Report of Appointment (Form F-5A) for the Ahoskie Police Department, which Petitioner signed on or about February 14, 2001, there is a block for Petitioner to indicate any criminal charges against him. The language in this block reads, “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.)” Petitioner did not list any criminal charges in the space provided on this form.

11. On the Personal History Statement (Form F-3) for the Winton Police Department, which the Petitioner completed and signed on or about December 21, 2000, question number 47 is preceded by the following language:

12. In response to question number 47 on the Personal History Statement (Form F-3) for the Winton Police Department, which asks, “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?” Petitioner responded by checking the “NO” box.

13. On the Report of Appointment (Form F-5A) for the Winton Police Department, which Petitioner signed on or about January 18, 2001, there is a block for Petitioner to indicate any criminal charges against him. The language in this block reads, “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.)” Petitioner checked the block indicating, “NO CRIMINAL CHARGES OTHER THAN MINOR TRAFFIC OFFENSES.”

14. On the Personal History Statement (Form F-3) for the Hertford County Sheriff’s Department, which Petitioner completed and signed on or about September 16, 1995, question number 47 is preceded by the following language:

NOTE: In the following question, include all offenses other than minor traffic offenses. . .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.

15. In response to question number 47 on the Personal History Statement (Form F-3) for the Hertford County Sheriff’s Department, which asks, “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?”, Petitioner responded by checking the “NO” box.

16. At the administrative hearing, Petitioner admitted that in 1989, he was charged with the offenses of “Duck hunting with shotgun/Hunt ducks w/o stamp,” that he represented himself in court on these offenses, pled guilty to these offenses, and paid a $200.00 fine for such offenses. The Court placed Petitioner on one year probation for these offenses. Petitioner explained that he was a deer hunter, and on the dates in question, he was duck hunting for his second time. While he had a federal duck stamp with him, he did not know that he needed a state duck stamp. Petitioner first contended that no one told him not to list the charges when he completed his Personal History Statements (Form F-3) and Report of Appointments (Form F-5A) during his prior employment positions. However, he also admitted that it was his mistake for not listing these offenses on his prior Personal History Statements.

17. Sheriff Lindy Pendergrass, of the Orange County Sheriff’s Department, hired Petitioner. Petitioner advised Sheriff Pendergrass about his duck hunting convictions. When Sheriff Pendergrass conducted a criminal history background check on Petitioner, Pendergrass saw these convictions on Petitioner’s criminal history. He advised Petitioner “in detail” how to complete the Personal History Statement, and hired Petitioner within two days after Petitioner applied for the job.

18. Sheriff Pendergrass talked with the Hertford County Sheriff, Ahoskie Police Chief, and Winton Town Manager. All those individuals were aware of Petitioner’s duck hunting convictions during Petitioner’s employment with those agencies, and all indicated that they teased Petitioner about those incidents. Petitioner has been a Deputy Sheriff for Sheriff Pendergrass since March 3, 2003. Sheriff Pendergrass would like to retain Petitioner as an employee, because Petitioner has done a good job, and is a good employee. While he strongly supports the Sheriff’s Education and Training Standards Commission, Sheriff Pendergrass asks that Petitioner be placed on probation in lieu of denying or revoking his certification.

CONCLUSIONS OF LAW

1. Both parties are properly before this Administrative Law Judge in that jurisdiction is proper and both parties received notice of hearing.

2. There is sufficient evidence that Petitioner did not list his criminal charge of duck hunting with a shotgun, and hunting ducks without a stamp on the Personal History Statements (Form F-3) he completed and signed for the Winton Police Department, the Ahoskie Police Department, or the Hertford County Sheriff’s Department.

3. 12 NCAC 10B .0204(c)(1) gives the North Carolina Sheriff’s Education and Training Standards Commission the authority to deny the certification of a justice officer when the Commission finds the applicant for certification has 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.

4. 12 NCAC 10B .0204(c)(2) gives the North Carolina Sheriff’s Education and Training Standards Commission the authority to deny the certification of a justice officer when the Commission finds the applicant for certification has knowingly and designedly by any means of false pretense, deception, fraud, 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.

5. Respondent properly denied Petitioner’s justice officer certification application for violating rules NCAC 10B .0204(c)(1) and (2).

6. 12 NCAC 10B .0205 PERIOD OF SUSPENSION: REVOCATION: OR DENIAL states in pertinent part:

When the Commission suspends, revokes, or denies the certification of a justice officer, the period of sanction shall be:

2) not less than five years where the cause of sanction is:

(h) the Commission may either reduce or suspend the periods of sanction under this Item or substitute a period of probation in lieu of revocation, suspension or denial following an administrative hearing. This authority to reduce or suspend the period of sanction 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.

PROPOSAL FOR DECISION

Based upon the above Findings of Fact and Conclusions of Law, the undersigned determines that Respondent should UPHOLD its initial decision to deny Petitioner’s justice officer certification application. However, given the nature of the offenses which Petitioner failed to disclose in his application for certification, Sheriff Pendergrass’ testimony regarding Petitioner’s positive job performance, and Sheriff Pendergrass’ desire to retain Petitioner as a justice officer, the undersigned proposes that Respondent exercise its discretion under 12 NCAC 10B .0205(2)(h), and grant Petitioner a justice officer certification, with a period of probation in lieu of denial.

ORDER AND NOTICE

The North Carolina Sheriff’s Education and Training Standards Commission will make the Final Decision in this contested case. That agency is required to give each party an opportunity to file exceptions to this 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 is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.

This the 6th day of April, 2004.

______

Melissa Owens Lassiter

Administrative Law Judge