COUNTY OF FRANKLIN
MELANIE BOUNDS ALLEN,
Petitioner,
v.
NORTH CAROLINA SHERIFFS’
EDUCATION AND TRAINING
STANDARDS COMMISSION,
Respondent.
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ADMINISTRATIVE HEARINGS
04 DOJ 1154
PROPOSAL FOR DECISION
On November 29, 2004, Chief Administrative Law Judge Julian Mann III heard this case in Raleigh, 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 at the hearing of a contested case under Article 3A, Chapter 150B of the North Carolina General Statutes.
APPEARANCES
PETITIONER: Melanie Bounds Allen, Pro se
1667 White Level Road
Louisburg, NC 27549
RESPONDENT: John J. Aldridge, III
Special Deputy Attorney General
NC Department of Justice
9001 Mail Service Center
Raleigh, NC 27699-9001
STIPULATIONS
The Stipulations are contained in the Order on Final Pre-Trial Conference, filed November 29, 2005, and as may otherwise appear in the record.
ISSUES
Did Petitioner knowingly make a material misrepresentation of any information required for certification as a detention officer by the North Carolina Sheriff’s Education and Training Standards Commission and is the Petitioner convicted of a combination of four or more Class A and B misdemeanors?
FINDINGS OF FACT
1. Both parties properly are before the Office of Administrative Hearings, in that jurisdiction and venue are proper; that both parties received Notice of Hearing; and that Petitioner received by certified mail the Proposed Denial of Justice Officer Certification letter mailed by Respondent Sheriffs’ Commission on June 15, 2004.
2. The North Carolina Sheriffs’ Education and Training Standards Commission (hereafter 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, upon the grounds as stated therein.
3. 12 NCAC 10B .0204(c)(1) and (2) states that the Sheriffs’ Commission may deny certification as 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) 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 through the Franklin County Sheriff’s Office on December 10, 2003.
5. The Petitioner completed a Personal History Statement (Form F-3), on or about September 24, 2003, as part of her employment application with the Franklin County Sheriff’s Office in order to obtain certification as a justice officer from the Sheriffs’ Commission.
6. Question 47 of the Sheriffs’ Commission Form F-3 asks the applicant to disclose her criminal offense record. Specifically the question indicates:
Include all offenses other than minor traffic offenses. The following are not minor traffic offenses and must be listed below: DWI, DUI (alcohol or drugs), failure to stop in the event of an accident (hit and run) and driving while license are permanently revoked or permanently surrendered (DWLR).
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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 has been expunged by a judge’s court order. (Emphasis added)
7. When the Petitioner initially completed her Personal History Statement, dated September 24, 2003, she listed in response to Question 47 that she had been charged in November 2003, with two charges of worthless checks by the Franklin County Sheriffs’ Office. She had been specifically directed to include these two charges on her statement by personnel in the Franklin County Sheriff’s Department. The Petitioner further indicated that she had “paid the check in full. Have receipt.” The Petitioner listed no other offenses.
8. When the Petitioner’s application for certification was received by staff for the Respondent, an attached Franklin County Clerk of Court record check corroborated that the Petitioner had been charged and convicted of two counts of worthless checks on November 7, 2003 in Franklin County. This criminal history record check from Franklin County also revealed a third Franklin County worthless check offense (01 CR 208) which the Petitioner pled guilty to on February 12, 2001. As this 2001 worthless check conviction was submitted by the Franklin County Sheriffs’ Office in conjunction with the Petitioner’s application for certification, the Petitioner’s omission of this offense from her Personal History Statement was not held against her.
9. When a statewide Administrative Office of the Courts criminal history record check was conducted on Petitioner, it disclosed that the Petitioner had been charged and convicted of a total of four worthless check offenses. The Petitioner was also charged by a criminal summons (98 CR 1486) on January 22, 1998 in Nash County for the misdemeanor offense of worthless check. The Petitioner pled guilty to this offense on February 23, 1998.
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10. Upon noticing that the Petitioner had failed to disclose the Nash County worthless check offense in response to Question 47 on her Personal History Statement, staff for Respondent requested information from the Franklin County Sheriffs’ Office and from the Petitioner as to the omission. By letter dated April 13, 2004, Mr. E. H. Smith of the Franklin County Sheriffs’ Office reported that he was unaware of the Petitioner’s Nash County worthless check offense. The Petitioner responded by letter dated April 7, 2004 and stated:
“The Nash County Docket # 1998 CR00 1486, it was my understanding that when I paid the money owed, that it was all over with. I did not think that it was against my record.” (Respondent’s Exhibit #6)
11. The Petitioner testified at the administrative hearing that she had omitted the 1998 Nash County worthless check offense from her Personal History Statement because she felt that it was no longer on her record since she had paid the fine and restitution. However, the Petitioner also testified that she thought she had listed the Nash County offense. The check in question was written to “Chico’s Mexican Restaurant” on December 5, 1997 in the original amount of $10.27. The Petitioner also testified that she had omitted the Nash County worthless check offense because she had forgotten about it because of the time lapse. The Petitioner also believed that she did not need to list the Nash County worthless check offense as she had previously had a store in Franklin County conduct a criminal history check on her and the check did not reveal the worthless check offenses.
12. The Petitioner testified that she remembered receiving a telephone call from officials with the Nash County Sheriffs’ Office to come to the department and receive the criminal summons for worthless check. The Petitioner testified that this was the first time she had ever been charged with a crime and was frightened. She recalled being told that she could pay the check off at the clerk’s office and preceded to do that after being served with the criminal summons.
13. Franklin County Sheriff, Jimmy Jones, and Franklin County Jail Administrator, Henry Edwards, both testified on behalf of the Petitioner and described her work ethic in glowing terms. Both expressed a desire to retain the Petitioner as an employee with the Franklin County Sheriffs’ Office. Petitioner was a model employee. She would make arrangements to report to work “on a minute’s notice.” She was willing to work where needed. She moved from part-time status to full-time.
14. Petitioner’s explanations as to why she omitted the Nash County worthless check demonstrated a confusion on her part as to whether it should be listed. She recalled the incident but believed once it had been paid that it was no longer part of her record. This assertion was credible because in the record’s check, privately conducted, this conviction did not appear.
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15. Pursuant 12 NCAC 10B .0204(d)(6), the Commission may revoke, suspend, or deny the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer has committed or been convicted of any combination of four or more crimes or unlawful acts defined in 12 NCAC 10B .0103(10)(a) as a Class A misdemeanor or defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor regardless of the date of the commission or conviction.
16. As defined in 12 NCAC 10B .0103(10)(b) a fourth conviction for misdemeanor worthless check pursuant to N.C.G.S. § 14-107 constitutes a Class B misdemeanor as set forth in the Class B Misdemeanor manual adopted by the Respondent. Petitioner’s record reveals four worthless check violations. (Respondent’s Exhibit #4)
CONCLUSIONS OF LAW
1. The parties are properly before the undersigned Administrative Law Judge and jurisdiction and venue are proper.
2. Petitioner made an omission on her “Personal History Statement” in response to Question #47. This information is required for certification. She failed to disclose her 1998 misdemeanor criminal charge of worthless check from Nash County. However, the undersigned concludes that the preponderance of the evidence does not demonstrate a violation of 12 NCAC 10B .0204(c)(1) and (2). The undersigned concludes that, although Petitioner recalled the incident that occurred in December of 1997, she remained confused as to it legal validity as she believed that when once the costs were paid, there was no further record of the incident. However, anyone seeking law enforcement certification should be more exact in disclosing such an incident. Petitioner was credible when she testified that she did not understand the adverse consequences to her certification for listing four worthless check misdemeanor convictions. Notwithstanding, Petitioner believed that it was not necessary to list the Nash County offense. This is the rationale that she clearly articulated in writing to the Respondent. Therefore, to Petitioner, the listing of this incident was not material and not knowingly concealed as she believed it was immaterial to her personal statement. The Petitioner is found by the undersigned to be credible based upon witness observation, her clear written explanation for the omission, the testimony of her superiors as to her work ethic, and the confusion resulting from the length of time from conviction, coupled with the record’s check which did not reveal a reportable conviction. Variations in Petitioner’s testimony as to the reason why Petitioner did not include the conviction amount to some evidence of a negative inference, but ultimately, the best evidence is her express written statement for the omission and subject further to the legal test that a preponderance of the evidence must establish that an alleged concealment must be both knowingly made and material.[(]
3. The Petitioner stands convicted of four worthless check offenses pursuant to N.C. G. S § 14-107, with the fourth worthless check conviction constituting a Class B misdemeanor as defined in 12 NCAC 10B .0103(10)(b) and the Class B Misdemeanor manual. The remaining three worthless check convictions constitute Class A misdemeanors as defined in 12 NCAC 10B .0103(10)(a). The Petitioner’s four worthless check convictions constitute a violation of 12 NCAC 10B .0204(d)(6).
PROPOSAL FOR DECISION
Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned proposes that Respondent deny the Petitioner’s Justice Officer Certification based upon her convictions for a combination of four Class A and Class B misdemeanors. This denial is indefinite so long as the stated deficiency exists until expunged or otherwise legally voided.
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).
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The Agency that will make the final decision in this contested case is the North Carolina Sheriffs’ Education and Training Standards Commission.
This the 18th day of February, 2005.
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Julian Mann, III
Chief Administrative Law Judge
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[(]* However, an applicant’s statement to support a legal conclusion justifying an omission of a conviction in the Personal History Statement is subject to strict scrutiny and must be highly persuasive.