COUNTY OF JONES
Frankie Durwood Hill,
Petitioner,
v.
N.C. Sheriffs’ Education
and Training Standards Commission,
Respondent. / )
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) / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
10 DOJ 0065
PROPOSAL FOR DECISION
On May 20, 2010, Administrative Law Judge Donald W. Overby, heard this case in New Bern, North Carolina. This case was heard after Respondent requested, pursuant to N.C.G.S. § 150B-40(e), the 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: Frankie Durwood Hill
4122 Hwy. 58 N.
Trenton, NC 28585
Respondent: J. Joy Strickland, Assistant Attorney General
Attorney for Respondent
N.C. Department of Justice
9001 Mail Service Center
Raleigh, North Carolina 276999001
ISSUE
Did Respondent properly propose to deny the Petitioner’s application for justice officer certification based upon the Petitioner’s previous denial for commissioning by the North Carolina Department of Justice, Company Police Program and because Petitioner lacks the good moral character required of every justice officer?
RULES AT ISSUE
12 NCAC 10B .0204(c)(5)
12 NCAC 10B .0301(a)(8)
12 NCAC 10B .0204(b)(2)
12 NCAC 10B .0205(3)(b) and (3)(e)
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 that the Petitioner received by certified mail, the proposed Denial of Justice Officer’s Certification letter, mailed by Respondent Sheriffs’ Commission on December 21, 2009. (Respondent’s Exhibit 7)
2. The North Carolina Sheriffs’ Education and Training Standards Commission (hereinafter 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.
3. 12 NCAC 10B. 0204 (c)(5) states that the Sheriffs’ Commission may deny the certification of a justice officer when the Commission finds that the applicant for certification:
has been denied certification or had such certification suspended or revoked by the North Carolina Criminal Justice Education and Training Standards Commission, or a similar North Carolina, out-of-state or federal approving, certifying or licensing agency.
4. 12 NCAC 10B. 0204 (b)(2) states that the Sheriffs’ Commission shall deny the certification of a justice officer when the Commission finds that the applicant for certification:
fails to meet or maintain any of the employment or certification standards required by 12 NCAC 10B .0300.
5. 12 NCAC 10B. 0301 sets forth the minimum standards for justice officers.
12 NCAC 10B .0301 (a)(8) requires that every justice officer employed or certified in North Carolina shall:
be of good moral as defined in: In re Willis, 299 N.C. 1, 215 S.E.2d 771 appeal dismissed 423 U.S. 976 (1975); State v. Harris, 216 N.C. 746, 6 S.E.2d 854 (1940); In re Legg, 325 N.C. 658, 386 S.E.2d 174 (1989); In re Applicants for License, 143 N.C. 1, 55 S.E. 635 (1906); In re Dillingham, 188 N.C. 162, 124 S.E. 130 (1924); State v. Benbow, 309 N.C. 538, 308 S.E.2d 647 (1983); and their progeny.
6. The Sheriffs’ Standards Division received a Form F-4, Report of Appointment, from the Jones County Sheriff’s Office on behalf of the Petitioner on January 16, 2009. (Respondent’s Exhibit 1)
7. Ms. Diane Konopka, Deputy Director of the Sheriffs’ Standards Division, testified that upon receipt of Petitioner’s Report of Appointment she reviewed his application paperwork. In addition, as is her usual practice, Ms. Konopka reviewed Petitioner’s certification files retained by the Department of Justice, Company Police Program and the North Carolina Criminal Justice Education and Training Standards Commission.
8. As a result of reviewing those files, Ms. Konopka discovered that Petitioner had previously held certification through the North Carolina Criminal Justice Education and Training Standards Commission while employed by the Winterville Police Department and the North Carolina State Highway Patrol (SHP). Ms. Konopka also discovered that Petitioner had previously made application for a commission as a Company Police Officer through Wackenhut Corporation Company Police.
9. Ms. Konopka obtained copies of documents contained in Petitioner’s Company Police Program application file regarding Petitioner’s disciplinary issues while he was employed with the SHP and the Winterville Police Department. In addition Ms. Konopka also obtained copies of documents from the Petitioner’s Company Police Program application file indicating Petitioner had been denied a company police officer commission in October of 2008. (Respondent’s Exhibits 2-5)
10. Ms. Konopka presented a summary of the documents that she obtained to the Probable Cause Committee of the Sheriffs' Commission.
11. The Probable Cause Committee found probable cause to believe that the Petitioner’s application for justice officer certification should be denied for the following two reasons:
a. Petitioner has been denied certification by the North Carolina Criminal Justice Education and Training Standards Commission, or a similar North Carolina, out-of-state or federal approving, certifying or licensing agency; and
b. Petitioner fails to meet the minimum employment standards in that Petitioner lacks the good moral character required of every justice officer.
(Respondent’s Exhibit 7)
12. Mr. Marvin Clark, the current Company Police Program Administrator, testified that the Petitioner previously made application for a commission as a company police officer through the Wackenhut Corporation Company Police agency. That application was reviewed and denied by his predecessor, Ms. Vickie Huskey.
13. The finding of probable cause to deny Petitioner’s commission as a company police officer was sent to Petitioner in writing by certified mail. Petitioner receipted for this notice. A review of the file held by the Company Police Program, indicates that Petitioner failed to appeal the denial by the Company Police Program. (Respondent’s Exhibit 5)
14. Petitioner’s application for a commission as a company police officer was denied pursuant to 12 NCAC 02I .0212 (c)(1) for a lack of good moral character. When the application for a commission as a company police officer is denied, the period of sanction shall not be less than three years pursuant to 12 NCAC 02I .0213 (a).
15. On October 6, 2008, Petitioner signed for the certified mail notifying him that his application for company police officer had been denied. Due to his failure to appeal the denial of his application for commission as a company police officer, the three year period of sanction began on the date that he received the notification. Therefore, Petitioner’s three year period of sanction is set to expire on October 6, 2011. (Respondent’s Exhibit 5)
16. Petitioner provided written answers in response to the Respondent’s First Set of Interrogatories and Request for Admissions regarding the denial of his application for company police officer commission. In this response, Petitioner admitted to the following:
That he was notified by the Company Police Program that his application for company police officer commission with Wackenhut Company Police had been denied. (Request for Admission 1)
That he did not appeal the decision denying his company police officer commission. (Request for Admission 2) (Respondent’s Exhibit 9)
17. The North Carolina Department of Justice, Company Police Program is a North Carolina approving, certifying or licensing agency as described in 12 NCAC 10B .0204 (b)(2).
18. Petitioner was the subject of a personnel complaint while employed with the SHP. Specifically, Ms. Amy Jones filed a complaint with SHP in November of 2005 indicating that Petitioner had made inappropriate comments to her while he was conducting a traffic stop of her vehicle. Ms. Jones alleged that Petitioner asked her “what time is dinner?” (Respondent’s Exhibit 2)
19. Regarding the allegation by Ms. Jones, Petitioner testified that he conducted a vehicle stop of Ms. Jones for speeding. He described her as a black female. During the traffic stop, Petitioner asked Ms. Jones where she was going and noticed that she had groceries in her car. Ms. Jones responded that she was going home to cook dinner. It was at that point that Petitioner asked Ms. Jones, “what time was dinner?” He said that she did not respond to the question and did not appear to be offended. Petitioner indicated that he was called into his First Sergeant’s office the next week to discuss the allegation. As a result of this incident, Petitioner was given a “written warning” that was placed in his personnel file. Petitioner believed at the time that this was a very serious incident and realized that he should have been more professional.
20. Petitioner provided written answers in response to the Respondent’s First Set of Interrogatories and Request for Admissions regarding the incident involving Ms. Amy Jones. In this response, Petitioner admitted to the following:
That while employed with SHP, he asked Ms. Amy Jones “what time is dinner”? That his comments and action regarding Ms. Jones were unsolicited and inappropriate. (Request for Admissions 12-13) (Respondent’s Exhibit 9)
21. Petitioner was the subject of a second personnel complaint also while employed with the SHP. This complaint involved the Petitioner’s untruthfulness regarding damage to his assigned patrol vehicle. Specifically, it is alleged that on Monday May 1, 2007, Petitioner took his patrol car to the Troop A garage for service. At that time, a garage employee named Bobby Keith Taylor noticed damage on Petitioner’s patrol car and asked him how the car had been damaged. Petitioner responded that he did not know the car had been damaged. The damage was reported to First Sergeant McLeod (McLeod) by Mr. Taylor. First Sgt. McLeod called Petitioner on his cellular telephone and asked Petitioner how the car got damaged. Petitioner denied knowledge that the car had been damaged. First Sgt. McLeod then instructed Petitioner to bring the car to the Highway Patrol district office. Upon Petitioner’s arrival at the district office, McLeod asked Petitioner again how his patrol car had been damaged. Petitioner again denied knowledge of the vehicle being damaged. At that time, First Sgt. McLeod told Petitioner that he needed to write a statement about what had occurred. Petitioner then said he wanted to change his story and told McLeod that he had run into a ditch and struck a broken tree limb. (Respondent’s Exhibit 3)
22. Regarding the allegation about damage to his patrol vehicle and his subsequent statements, Petitioner testified that on a Sunday in 2007 he attempted to turn his vehicle around to apprehend a person that was speeding. When he attempted to do that, he ran off the road and into a ditch. His car was stuck in the ditch until a man in a red Ford truck stopped and pulled his car out of the ditch. He noticed that the patrol vehicle had been damaged after it was pulled out of the ditch. He indicated that this accident occurred the day before he took his patrol car into the garage for his scheduled oil change on Monday May 1, 2007.
23. Petitioner testified that he had been untruthful to Mr. Taylor and First Sgt. McLeod when questioned about the damage to his patrol vehicle. Specifically, he indicated that when Bobby Taylor asked him about the damage to the fender and the dent in the car, that he told him that he did not know how the car was damaged. Petitioner also stated that when First Sgt. McLeod looked at the patrol car at the office, he said “it looks like you hit something.” Petitioner then told First Sgt. McLeod that he did not know how the damage happened. According to Petitioner, First Sgt. McLeod then stated that “you might get fired for lying.” Petitioner then admitted that he had not been telling the truth about the damage to his patrol car. Petitioner stated that he was put under investigation regarding this incident and it was recommended that he be dismissed. Petitioner indicated that he asked if the SHP would accept his resignation in lieu of his termination and they did.
24. Petitioner further testified that on the day that he was involved in the accident, he was called into Captain Scott’s office regarding an unrelated complaint about him being late to court. During that conversation, Captain Scott reminded Petitioner of the importance of being truthful. In reference to Petitioner being late to court, Captain Scott said “always do what you say you are going to do. If you [think] you can’t be there in an hour to say it will take more time and not to say you can be there in an hour, be truthful.”