NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
STOKES COUNTY 00 DOJ 0909
______
ANDREW NEWSOM, )
Petitioner; )
)
vs. ) PROPOSAL FOR DECISION
)
N.C. SHERIFFS’ EDUCATION AND )
TRAINING STANDARDS )
COMMISSION, )
Respondent. )
THIS CAUSE COMING ON TO BE HEARD and being heard before the Honorable James L. Conner, II, Administrative Law Judge, on December 14, 2000, in Danbury, Stokes County, North Carolina. Proposed findings were submitted by electronic mail on January 19, 2001
APPEARANCES
For Petitioner: Jeffrey S. Lisson, Esq.
For Respondent: John J. Aldridge, III, Assistant Attorney General
ISSUE
Is Respondent’s proposed denial of Petitioner’s certification as a justice officer supported by the evidence?
STATUTES AND RULES AT ISSUE
N.C. Gen. Stat. Chapter 17E
12 NCAC 10B .0204(c) (1), (2)
12 NCAC 10B .0204(d)(2)
STIPULATED FACTS
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 Proposed Revocation of Justice Officer Certification letter mailed by Respondent on June 14, 2000.
2. The North Carolina Sheriffs’ Education and Training Standards Commission (Respondent) has the authority granted under Chapter 17E of the North Carolina General Statutes, and Title 12 of the North Carolina Administrative Code, Chapter 10, subchapter 10B, to certify justice officers as either deputy sheriffs or jailers, and to deny, revoke, or suspend such certification.
3. On October 11, 1993, Petitioner completed a Personal History Statement (form F-3) as a part of the application for certification with the Criminal Justice Education and Training Standards Commission. Question number 47 of that form asked: “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?” Petitioner answered, “No.”
4. On November 24, 1993, Petitioner submitted a completed Report of Appointment Form (Form F-5A) to the North Carolina Criminal Justice Education and Training Standards Commission as a part of his application for certification through the King Police Department. Petitioner failed to list any of his previous charges in the section of the form requesting such information.
5. Petitioner was issued a probationary law enforcement certification through the Criminal Justice Education and Training Standards Commission (GRA 243137606) on November 24, 1993.
6. Petitioner was issued a general law enforcement certification through the Criminal Justice Education and Training Standards Commission (GNA 243137606) on November 24, 1994.
7. Petitioner applied for certification with the Stokes County Sheriff’s Office through the Respondent on March 16, 2000.
8. 12 NCAC 10B .0204 (c)(1) and (2) provide:
(c) 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
(1) 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; or
(2) has knowingly or designedly by any means of false pretense, deception, defraudation, 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.
9. Petitioner was charged on or about March 18, 1989 in Pitt County with a criminal offense of a Misdemeanor injury to real property (1989 CR 005820), which was dismissed April 10, 1988 [sic]; and the criminal offense of Misdemeanor Pur/ Poss Beer/Wine Underage (1988 CR 016815) in Pitt County, for which he paid a fine in the Clerk’s Office and was not required to attend Court. Petitioner did not list these charges on his Personal History Statement (form F-3) or his Report of Appointment Form (form F-5).
10. By letter, dated June 14, 2000 Petitioner was notified by Julia Lohman, Director of the Sheriffs’ Educational and Training Standards Commission that probable cause existed to believe Petitioner’s application for certification was subject to be denied based on his omission of the above referenced criminal charges on the Personal History Statement Form (form F-3) and Report of Appointment Form (form F-5) completed in furtherance of his application for certification through the North Carolina Criminal Justice Education and Training Standards Commission.
ADJUDICATED FINDINGS OF FACT
1. Andrew Newsom is 30 years old. He has been an officer with the King Police Department for seven years. He began in patrol, and now holds the rank of detective.
2. Detective Newsom was raised in the City of King, North Carolina. After graduating from South Stokes High School, he attended East Carolina University from fall 1988 to spring 1993, obtaining a degree in criminal justice.
3. During that time, he was an intern with the City of Greenville, North Carolina, Police Department by day, and completed his Basic Law Enforcement Training by night. Greenville, North Carolina is in Pitt County.
4. Detective Newsom’s mother was rendered a quadriplegic due to an auto accident involving a drunk driver. Andrew Newsom, his brother, and his father cared for his mother. She died in 1988. It was obvious from Detective Newsom’s demeanor that this was a traumatic experience for him, and remains painful for him to this day.
5. In his first year at East Carolina University, young Newsom and two college friends went to a bar called the Elbow Room. There, one of his friends bought a beer in a cup and gave it to Newsom. A North Carolina Alcohol Law Enforcement Agent approached Newsom and asked if the beer was his. Newsom admitted it was, and that he was underage (he was 18 at the time).
6. The Petitioner admitted to consuming the alcohol in the bar that evening. The Petitioner was asked to step outside of the bar by the ALE agent and to sit in the agent’s patrol vehicle. The Petitioner did so. The Petitioner demonstrated a detailed recollection of events on the date in question.
7. The agent gave Detective Newsom a citation for minor in possession of beer/unfortified wine, a violation of N.C.G.S § 18B-302(b)(1). The Alcohol Law Enforcement Agent told Detective Newsom that the citation was like a traffic ticket and would not be on his record. The date of offense was September 9, 1988. The matter was disposed of September 19, 1988 when Detective Newsom paid the citation in the Clerk’s office. He effectively entered a plea of guilty and received a verdict of guilty.
8. On or about March 18, 1989, while horsing around with friends, Newsom’s hand was pushed into a glass enclosure, which housed a fire extinguisher, causing the glass to break. Though a dormitory resident assistant told Detective Newsom he only needed to pay for the damage, an ECU security officer came by and asked Detective Newsom to go with him to the Magistrate’s Office. Detective Newsom was not handcuffed, was not told he was under arrest, and was not told that he was not free to leave. Detective Newsom voluntarily went with the officer to the Magistrate’s office, where he received a Summons to Court. When he went to Court, the matter was voluntarily dismissed on April 10, 1989. The voluntary dismissal was an adjudication that Detective Newsom had not committed the offense of injury to real property.
9. Detective Newsom believed that the voluntarily dismissed injury to real property charge was not on his record.
10. Detective Newsom was not placed under arrest for either of the offenses described above.
11. The commission and conviction for underage possession of beer or unfortified wine occurred more than 5 years before Detective Newsom’s application for certification with the North Carolina Criminal Justice Education and Training Standards Commission.
12. Stokes County is a small county in which there are only three law enforcement agencies, the Stokes County Sheriff’s Department, King Police Department, and Walnut Cove Police Department. The agencies cooperate among themselves. Often, officers and detectives from the police departments are sworn as sheriff deputies at the request of their departments and the sheriff’s department. This assists all agencies, in that officers can help with sheriff’s investigations, and can pursue their own investigations in the county without the assistance of a sheriff’s deputy.
13. Upon his request for certification through the Sheriffs’ Educational and Training Standards Commission, Captain Al Tuttle of the Stokes County Sheriff’s Department was informed by the Sheriffs’ Educational and Training Standards Commission that Detective Newsom had the above-listed charges on his criminal record.
14. The same day, Captain Tuttle informed Detective Newsom of this information. Detective Newsom appeared shocked and unaware that these matters were on his record. He immediately told Captain Tuttle all details he could recall of both incidents.
15. The same day, Detective Newsom called his supervisors at the King Police Department and the Chief of Police, and likewise told them all details he could recall of the incidents. His versions of what occurred have been consistent throughout, including at this hearing.
16. Detective Newsom has been a valued and valuable member of the King Police Department. He is well respected by the community and has an impeccable reputation for honesty and integrity. He volunteers his off-duty time to assist with community projects and has received many commendations from his superiors, community members, and the political leaders of the City of King. His most recent evaluation in November 1999 rated him “superior” in all respects.
17. On his application for certification with the North Carolina Criminal Justice Education and Training Standards Commission, Detective Newsom listed his addresses in the City of Greenville, Pitt County, North Carolina. According to testimony from all law enforcement officers, though no statewide electronic searches existed at the time which would show the charges Detective Newsom had, it would be simple for any officer to call the Pitt County Clerk’s office by telephone and ask for any individuals’ criminal record. Investigators routinely made such phone calls. The Court thus finds as a fact that Detective Newsom made no effort to hide or prevent the Commission or others from knowing his residence in Pitt County, which would allow any investigator to check whether he had a criminal record there. This disclosure would not excuse an intentional misrepresentation regarding criminal record. However, it does tend to indicate lack of intent to conceal his record in Pitt County.
18. Detective Newsom disclosed on his initial application that he had used marijuana, which the Assistant Director of the North Carolina Criminal Justice Education and Training Standards Commission testified they likely would not have been able to discover had Detective Newsom not disclosed it voluntarily. This disclosure also tends to show lack of intent to conceal damaging information.
19. All witnesses who knew Detective Newsom, including persons called at this hearing as witnesses for the North Carolina Criminal Justice Education and Training Standards Commission, gave strong positive evidence of Detective Newsom’s reputation for truthfulness and honesty. Further, a criminal defense attorney with nearly three decades of practice in Stokes County testified that Detective Newsom was consistently and always honest and trustworthy. In toto, the positive evidence of Detective Newsom’s reputation for truthfulness and honesty was the strongest the undersigned had ever heard.
20. At the time he received the charges in Pitt County, Detective Newsom was dealing with the exceptional trauma of the death of his mother.
21. Detective Newsom was forthright and honest when it was disclosed to him that his failure to list the charges detailed above could be a problem on his application to be sworn with the Stokes County Sheriff’s Department.
22. There is no indicia that Detective Newsom ever attempted to mislead any investigators, the North Carolina Criminal Justice Education and Training Standards Commission, or the North Carolina Sheriffs’ Education and Training Standards Commission.
23. The Court finds as a fact that it is important for applicants and sworn officers to be honest, truthful, and have integrity. It is further important that they reveal full and truthful information on their applications.
24. The Court finds as a fact that Detective Newsom did not intend to mislead, conceal, or hide the charges from Pitt County. This is shown by his disclosure of his residence in Pitt County, as well as his voluntary admission to one instance of marijuana use.
25. All officers in any way involved in hiring decisions, or the recommendation of Detective Newsom for his position with the King Police Department, testified that if the Pitt County charges had been disclosed on his initial application, it would not have affected their hiring decisions.
26. Further, all officials involved in the recommendation or hiring decisions testified that if they believed the failure to list the charges was an honest mistake, it would not have affected their hiring decisions. Sheriff Mike Joyce of the Stokes County Sheriff’s Office testified that if it were shown that the Petitioner made a knowing material misrepresentation of his criminal history record information, he would not be able to give an answer as to whether he would still want him as a deputy sheriff.
27. The Assistant Director of the North Carolina Sheriffs’ Education and Training Standards Commission testified he found no direct evidence of any dishonest purpose or intent to deceive by Detective Newsom in his initial application for certification with the North Carolina Criminal Justice Education and Training Standards Commission, or with the Sheriffs’ Educational and Training Standards Commission.
CONCLUSIONS OF LAW
1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, and both parties received proper Notice of Hearing.
2. 12 NCAC 10B.0204(d)(2) limits the use by both Commissions of Class B Misdemeanors to revoke, suspend, or deny certification to those which have a date of commission or conviction within five years of the date of application. As the minor in possession charge and conviction occurred more than five years prior to the date of application, they could not have been used by either Commission to revoke, deny, or suspend Detective Newsom’s certification at the time the application was made, and thus could not have been material.
3. The Voluntary Dismissal of Petitioner’s Injury to Real Property charge in 1989, more than four years prior to his application, was an adjudication on the merits that Petitioner did not commit the offense of Injury to Real Property. As he was not arrested on the charge, the only violation by Petitioner in failing to list this charge on his forms was that he had been charged with the offense.