COUNTY OF WAKE
JOSEPH SHANE JOHNSTON,
Petitioner,
v.
NORTH CAROLINA SHERIFFS’
EDUCATION AND TRAINING
STANDARDS COMMISSION,
Respondent. /
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) / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
08 DOJ 0209
PROPOSAL FOR DECISION
On August 11, 2008, Administrative Law Judge Melissa Owens Lassiter heard this case in Raleigh, North Carolina. This case was heard pursuant to Respondent’s request under N.C. Gen. Stat. § 150B-40(e), for designation of an Administrative Law Judge to preside at contested case hearing under Article 3A, Chapter 150B of the North Carolina General Statutes.
APPEARANCES
Petitioner: Joseph Shane Johnston
4005 Summer Winds Circle
Clayton, North Carolina 27520
Respondent: John J. Aldridge, III
Special Deputy Attorney General
North Carolina Department of Justice
9001 Mail Service Center
Raleigh, North Carolina 27699-9001
ISSUE
Did Petitioner knowingly make a material misrepresentation of any information required for certification as a justice officer by the North Carolina Sheriffs’ Education and Training Standards Commission?
EXHIBITS ADMITTED INTO EVIDENCE
Petitioner: None
Respondent: 1 - 8
FINDINGS OF FACT
1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, and both parties received Notice of Hearing. On December 12, 2007, Petitioner received, by certified mail, Respondent’s proposed Revocation of Petitioner’s Justice Officer Certification. Respondent’s proposed Revocation was based on Petitioner: (1) knowingly making a material misrepresentation of information required for certification by failing to disclose his prior use of LSD and Xanax, and (2) knowingly making a material misrepresentation of information required for certification by failing to fully disclose the extent of his prior uses of marijuana and cocaine. (Resp Exh 6)
2. The North Carolina Sheriffs’ Education and Training Standards Commission (hereinafter referred to as “Respondent”) 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)(1) and (2) states that Respondent may revoke certification of a justice officer when it 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) 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. On February 8, 2006, Petitioner was appointed as a detention officer through the Wake County Sheriff’s Office. On that date, Petitioner signed a Report of Appointment form, attesting that he was aware that any information he provided in the certification process must be thorough, complete, and accurate to the best of his knowledge. He further attested that he understood and agreed that any omission, falsification or misrepresentation of any fact or portion of such information, may be the sole basis for termination of his employment and/or denial or revocation of his certification at any time.
5. On or about November 16, 2005, Petitioner completed a Personal History Statement (Form F-3), as part of his employment application with the Wake County Sheriff’s Office, and to obtain certification as a justice officer from Respondent.
6. Question number 44 of Respondent’s Form F-3 asked the applicant if he had ever used marijuana. Petitioner responded by checking the block, “Yes,” and explained that, “I was young and in an experimental stage of my life”.
7. Question number 45 of Respondent’s Form F-3 asked the applicant, “Have you ever used any other illegal drugs, including but not limited to opiates, pills, heroin, cocaine, crack, LSD, etc.?” In response to this question, Petitioner indicated, “Yes,” and explained, “I was young and in an experimental stage of my life”.
8. Wake County Sheriff’s Investigator Patsy Simmons conducted a background investigation on Petitioner to verify Petitioner’s Personal History Statement, and as part of the Wake County Sheriff’s Office employment process. On January 26, 2006, Investigator Simmons interviewed Petitioner. During the course of this interview, Investigator Simmons questioned Petitioner about his background including personal and family information, educational background, criminal history records, and his prior answers regarding his prior drug usage. Specifically, Investigator Simmons asked Petitioner to explain in more detail what drugs, other than marijuana, he had ever used.
a. Petitioner was emphatic that he had tried cocaine once when he was 16 or 17 years old, and was hanging out with the wrong crowd. Petitioner stated that that was the only time he had ever tried any illegal drugs other than marijuana. Petitioner specifically denied using any other drugs other than marijuana and cocaine in response to Investigator Simmons’ questions.
b. Petitioner confirmed this response to Investigator Simmons by writing a handwritten statement to this effect dated January 26, 2006.
9. Based in part on Investigator Simmons’ positive background investigation, the Wake County Sheriff’s Office hired Petitioner as a detention officer.
10. Subsequent to his employment as detention officer, Petitioner was offered an opportunity to apply for a position as a deputy sheriff through the Wake County Sheriff’s Office. The application process in transferring from detention officer to deputy sheriff requires applicants submit to a controlled voice stress analysis test (CVSA).
11. On August 8, 2007, Investigator John Carter of the Wake County Sheriff’s Office conducted the CVSA test on Petitioner. Before taking the test, Investigator Carter advised Petitioner of the questions he would ask during the CVSA and discussed the questions with Petitioner.
a. When Investigator Carter asked Petitioner if he had ever used any illegal drugs that he had not revealed on his previous Personal History Statement, Petitioner disclosed for the first time that he had used the hallucinogen “Acid,” otherwise known as LSD, once or maybe twice. Petitioner explained to Investigator Carter that he had used marijuana as many as seven or eight times, and had used powdered cocaine on more than one occasion. Petitioner further explained that he had used these drugs between the ages of 15 and 18 years. (Resp Exh No. 4, Pre-Test Admissions)
b. Further, Petitioner disclosed for the first time to Investigator Carter that he had consumed some type of pill that was illegal, but he did not know the name of the drug. (Resp Exh No. 4) Petitioner believed this pill was Xanax.
12. On August 15, 2007, Investigator Carter completed a report on Petitioner’s CVSA results. Carter noted reservations about Petitioner’s credibility based upon his “willful omissions” on his application about the “specifics of his prior illegal drug use.” Investigator Carter submitted his report to the appropriate officials within the Wake County Sheriff’s Office.
13. Due to the discrepancies about Petitioner’s prior drug use, the Wake County Sheriff’s Office requested Petitioner complete a statement explaining why he did not fully disclose his prior involvement with illegal drugs, and fully explain the scope of such drug involvement.
14. On August 8, 2007, Petitioner completed a sworn written statement. (Resp Exh No. 4) In his statement, Petitioner explained that at the age of 16 he experimented with LSD. He stated that he “used it once or twice when he was around some friends at a party.” He also recalled experimenting with a pill that he believed was Xanax. Petitioner stated that he got it from a girlfriend at her house.
a. He stated that he was around 17 years of age when he experimented with marijuana. He stated that he used marijuana approximately seven or eight times, and consumed the drug either through smoking it in a “joint” or by using a smoking device. Petitioner also disclosed that he had used cocaine for the first time when he was 17 years of age at a party. He stated he may have used cocaine on one or two other occasions since that occasion. The last time he used cocaine he thought he was around 18 or so.
b. Petitioner explained that he did not disclose all of his prior drug uses on his prior history [statement], because he “didn’t realize the importance of them even though they were when I was younger.” Petitioner could not remember some of the specifics about the use. He noted that he did not withhold this information to deceive anyone, but “just failed to realize the importance of them.”
15. The Wake County Sheriff’s Office documented Petitioner’s omissions and misrepresentations and disclosed such information to Respondent. (Resp Exh No. 5)
16. In response to Respondent’s First Set of Admissions and Interrogatories, Petitioner admitted to his prior use of marijuana, LSD, cocaine, and Xanax. Petitioner explained that he did not accurately answer the question concerning his prior of marijuana, because he was unsure of the exact number of the times he had used the drug. He did not disclose his use of LSD or Xanax, because he had forgotten about it. Petitioner did not accurately disclose the number of times he had used cocaine, because he was ashamed to admit it. (Resp Exh No. 7)
17. Petitioner’s explanation that he did not list his prior use of LSD and Xanax, because he did not remember is not credible. Petitioner admitted to using these two drugs during the same period in which he was using marijuana and cocaine. It is not reasonable that an individual would forget such a significant event in their lives. Petitioner admits to knowingly lying about the number of times that he had used cocaine. Petitioner admits that he failed to disclose his full use of cocaine because he was ashamed by it. This explanation is more consistent with why he omitted the use of LSD and Xanax than his allegation that he had forgotten about their use.
18. Moreover, Petitioner’s initial explanation in his August 8, 2007 statement, that he did not realize the importance of his full disclosure of his use of drugs, is inconsistent with his current assertions that he had forgotten about such use. The fact that the Petitioner demonstrated such a detailed recollection of the events surrounding his use of all of these drugs, but decided to not list them, evidences a conscious decision not to disclose their use.
CONCLUSIONS OF LAW
1. The parties properly are before the undersigned Administrative Law Judge and jurisdiction and venue are proper.
2. Respondent 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 deny, revoke or suspend such certification.
3. 12 NCAC 10B .0204(c)(1) and (2) states that the Sheriffs’ Commission may revoke the certification of 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. A preponderance of the evidence proved that Petitioner knowingly made a material misrepresentation of information required for certification by failing to disclose his prior use of LSD and Xanax. Moreover, Petitioner knowingly made a material misrepresentation of information required for certification by failing to disclose fully the extent of his prior uses of marijuana and cocaine.
5. Petitioner’s knowing material misrepresentation of information required for certification constitute a violation of 12 NCAC 10B.0204(c)(1) and (2).
6. Respondent’s proposed revocation of the Petitioner’s justice officer certification is supported by substantial evidence.
PROPOSAL FOR DECISION
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned proposes that Respondent’s initial decision to revoke Petitioner’s justice officer certification for a period of five (5) years for knowingly making material misrepresentations of his prior use of LSD, Xanax, and the extent of his prior use of cocaine and marijuana, should be AFFIRMED.
NOTICE AND ORDER
The North Carolina Sheriffs’ Education, Training, and Standards Commission will make the Final Decision in this contested case. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.
Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision. N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.
This the 7th day of October 2008.
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Melissa Owens Lassiter Administrative Law Judge
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