State of North Carolina s143

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF MECKLENBURG 10 DOJ 1093

MICHAEL H. ROBINSON )

Petitioner, )

)

v. ) DECISION

)

NORTH CAROLINA DEPARTMENT )

OF JUSTICE, COMPANY POLICE )

PROGRAM, )

Respondent. )

______)

In accordance with North Carolina General Statute §150B-23, Petitioner requested the designation of an administrative law judge to preside at an Article 3, North Carolina General Statute § 150B, contested case hearing of this matter. Based upon the Petitioner’s request, Administrative Law Judge Selina M. Brooks heard this contested case in Charlotte, North Carolina on July 7, 2010.

APPEARANCES

Petitioner: Michael Henry Robinson

9430 Cantle Drive

Charlotte, North Carolina 28216

Respondent: J. Joy Strickland, Assistant Attorney General

Attorney for Respondent

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Is the Respondent’s proposed denial of Petitioner’s company police officer commission, for knowingly making material misrepresentations of information required for commissioning, supported by substantial evidence?

RULES AT ISSUE

12 NCAC 02I .0212(c)(6)

12 NCAC 02I .0213(a)(4)

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following Findings of Fact. In making the Findings of Fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.

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 Petitioner received the notification of probable cause to deny company police commission letter mailed by the Respondent on February 8, 2010. (Respondent’s Exhibit 6)

2. Respondent has the authority granted under Chapter 74E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 2I, to commission company police officers and to revoke, suspend or deny such certification.

3. The Company Police Administrator received and retained copies of documents in Petitioner’s company police officer file that were sent from the National Archives and Records Administration - National Personnel Records Center (Military Personnel Records). (Respondent’s Exhibit 3)

4. The military records contain the personnel file of the Petitioner during the times in which he was a member of the United States Army. (Respondent’s Exhibit 3)

5. The military records indicate that Petitioner was the subject of disciplinary action under Article 15 of the Uniform Code of Military Justice (UCMJ) (non-judicial punishment) on or about March 30, 1982 from military officials while on active duty with the United States Army for violation of a general order in violation of Article 92 UCMJ. That disciplinary action resulted in Petitioner receiving the following punishment:

forfeiture of $200.00 (suspended for 90 days);

extra duty for 15 days; and

15 days restrictions.

(Respondent’s Exhibit 3, page 67)

6. Also according to the military records, charges were preferred against Petitioner under the Uniform Code of Military Justice for conspiracy to steal government funds and larceny of government funds in 1983 in violation of Articles 81 and 121 of the UCMJ respectively, as a result of the Petitioner conspiring with Specialist Four Carl A. Taylor to submit falsified forms indicating the Petitioner had traveled when, in fact he had not, in order to steal $1500.00 in United States Currency. (Respondent’s Exhibits 3, pages 20-21).

7. As a result of those charges being preferred against him and in lieu of a court martial, Petitioner was administratively separated from the United States Army with an “Under other than Honorable conditions” discharge. (Respondent’s Exhibit 3, page 2)

8. The former Company Police Administrator who has since retired, Vickie Huskey, requested that Petitioner provide a statement regarding the two incidents that occurred in the military that were referenced above in Findings of Fact 5-6.

9. Petitioner provided a three page handwritten statement, dated July 28, 2009, to Ms. Huskey in which he indicated in pertinent part the following information:

I Michael H. Robinson at that time was 19 yrs old at my first duty station. I went to Korea to do a 12 month tour. There months into my tour I met a guy that worked in the finance dept. . . . This was the year of 1981. I can’t remember last name, his first was Carl. Carl was telling me about how to get money from the army and it would be clean. He told me to go to the money cage at a certain time, paperwork would be there for me to sign and get the money. He said that he would take care of the papers. So I did, got the money and that evening went to his room and split the money. At that time, the Army paid in cash. The paperwork would state that I went TDY or traveled somewhere I didn’t. I can’t remember how much money it was. We did this twice. I was placed out of the Army on other than honorable conditions in lieu of a court martial for the good of the service. (Respondent’s Exhibit 4)

10. Marvin Clark, the current Company Police Administrator reviewed Petitioner’s military records and compared them to the information provided by the Petitioner in his statement and application materials.

11. As a result of Mr. Clark’s review, Respondent found probable cause to deny Petitioner’s company police officer commission as a result of Petitioner knowingly making material misrepresentations of information on the Personal History Statement (Form F-3) which Petitioner completed and signed on or about November 9, 2008 and the criminal history section of the Report of Appointment/Application for Certification Form F-5A which Petitioner completed and signed on or about November 5, 2008. (Respondent’s Exhibits 1-2)

12 Petitioner had completed the Personal History Statement (Form F-3) and the criminal history section of the Report of Appointment/Application for Certification (Form F-5A) as part of his application for a company police officer commission with Kodiak Special Company Police.

13. The first material omission outlined in the finding of probable cause to deny Petitioner’s company police officer commission arises from question number 39 of the Personal History Statement (Form F-3). Specifically, question number 39 reads as follows:

Were you ever court-martialed, tried on charges or were you the subject of a summary court, deck court, or non judicial punishment (Captain’s mast, company punishment, Article 15, etc.), or any other disciplinary action while a member of the armed forces? (Respondent’s Exhibit 2)

14. Petitioner responded to question number 39 by checking the block beside the answer, “No”. Petitioner failed to indicate that he was the subject of disciplinary action pursuant to Article 15 of the UCMJ (non-judicial punishment) on or about March 30, 1982. Furthermore, Petitioner failed to indicate the court martial charges that were preferred against him in1983 for conspiracy to steal $1500.00 in United States currency and stealing $1500.00 in United States currency. Lastly, Petitioner failed to indicate that in lieu of court martial he was involuntarily separated from the United States Army on December 23, 1983 with an “under other than Honorable conditions” discharge. (Respondent’s Exhibits 2 & 3)

15. The second material misrepresentation outlined in the finding of probable cause to deny Petitioner’s company police officer commission also arises from the Personal History Statement (Form F3). Specifically, question number 47 reads as follows:

Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense? (Respondent’s Exhibit 2)

16. Petitioner responded to question number 47 by listing two counts of assault on a female, one in 1988 and another in 2008. However, Petitioner failed to indicate the court martial charges that were preferred against him in1983 for conspiracy to steal $1500.00 in United States currency and stealing $1500.00 in United States currency. (Respondent’s Exhibits 2-3)

17. Page ten (10) of the Personal History Statement (Form F3), which was completed and signed by Petitioner on or about November 9, 2008, as part of his application with the Kodiak Special Company Police, contains the following paragraph just above the Petitioner’s notarized signature:

I hereby certify that each and every statement made on this form is true and complete and I understand that any misstatement or omissions of information will subject me to disqualification or dismissal. I also acknowledge that I have a continuing duty to update all information contained in this document. I will report to the employing agency and forward to the NC Criminal Justice Education and Training Standards Commission any additional information which occurs after the signing of this document.

(Respondent’s Exhibit 2)

18. The third material misrepresentation outlined in the finding of probable cause to deny Petitioner’s company police officer commission arises from the criminal history section of the Report of Appointment/Application for Certification. The following language is included in that section:

Each applicant must list any and all criminal charges regardless of the date of offense and the disposition (to include dismissal, not guilty, nol pros, PJC, or any other disposition where you entered a plea of guilty). (Respondent’s Exhibit 1)

19. The Petitioner completed this section by indicating two counts of assault on a female, one in 1988 and another in 2008. Petitioner failed to indicate the court martial charges that were preferred against him in 1983 for conspiracy to steal $1500.00 in United States currency and stealing $1500.00 in United States currency (Respondent’s Exhibits 1 and 3)

20. Petitioner testified that he has been employed in law enforcement since 1993.

21. Petitioner testified he did not understand when answering Question #39 on the Personal History Statement (Form F3) that he needed to go back 27 years and list the incidents from the military. Furthermore, Petitioner testified that he had almost forgotten about the incidents that occurred during his military service, and didn’t try to lie when filling out his Personal History Statement (Form F3).

22. Petitioner testified that in 1982 he received an Article 15 punishment for wrongfully purchasing goods by going over his ration amount. He indicated that he accepted the Article 15 and knew that he would receive punishment as a result.

23. Petitioner further testified that in 1983 he was charged with Larceny of Government Funds. He indicated that a friend of his had an idea to do the paperwork indicating that Petitioner had traveled for training purposes when in fact he had not completed the travel or training. Petitioner testified that he did not fill out or complete any of the paperwork but he did sign the papers at the finance office indicating that he was entitled to the money when he was not.

24. Petitioner further testified that he did not know at the time of the commission of the crime that the acts were stealing, but understands now that he obtained funds he did not earn and that is wrong. Petitioner indicated that he was given an opportunity to have a court martial but instead he chose to be discharged “Under Other than Honorable Conditions”.

BASED UPON the foregoing Findings of Fact and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case. The parties received proper notice of the hearing in this matter. To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to the given labels.

3. 12 NCAC 02I .0212(c)(6) states in pertinent part that a company police commission shall be denied upon a finding that the applicant knowingly made a material misrepresentation of any information required for commissioning or certification from the Company Police Administrator.

4. 12 NCAC 02I .0213(a) states that:

When the Attorney General, or his designee, suspends or denies the commission of a company police officer, the period of sanction shall not be less than three years. However, the Attorney General, or his designee, may . . . substitute a period of probation in lieu of suspension of a commission following an administrative hearing, where the cause of sanction is:

(4) material misrepresentation of any information required for company police commissioning.

5. The Petitioner has the burden of proof. The Petitioner has failed to show, by a preponderance of the evidence that Respondent improperly proposed to deny his company police officer commission.