STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF PASQUOTANK 00 DOJ 1558

JOSHUA CRAIG BROTHERS,
Petitioner,
v.
NORTH CAROLINA SHERIFFS’ EDUCATION AND TRAINING STANDARDS COMMISSION,
Respondents. / )
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PROPOSAL FOR
DECISION

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THE ABOVE-ENTITLED MATTER was heard before the undersigned Augustus B. Elkins II, Administrative Law Judge, on March 19, 2001, in the Pasquotank County Courthouse, Elizabeth City, 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

FOR PETITIONER: R. Mark Warren, Attorney at Law

The Twiford Law Firm, L.L.P.

P.O. Box 669

Moyock, North Carolina 27958

FOR RESPONDENT: Amy L. Yonowitz, Attorney at Law

Assistant Attorney General

Law Enforcement Liaison Section

P.O. Box 629

Raleigh, North Carolina 27602-0629

EXHIBITS

FOR PETITIONER: Petitioner’s Exhibits #1 through #9.

FOR RESPONDENT: Respondent’s Exhibits #1 through #16

ISSUES

1. Did the Petitioner knowingly make a material misrepresentation of information required for certification or accreditation from the Respondent by omitting his two previous Class A misdemeanor convictions of Hunting Across and From a State Road when completing application with the Pasquotank County Sheriff’s Department for certification with Respondent as a Deputy Sheriff?

2. Did the Petitioner knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation or cheating whatsoever, obtain or attempt to obtain credit, training or certification from the Respondent by omitting his two previous Class A misdemeanor convictions of Hunting Across and From a State Road when completing application with the Pasquotank County Sheriff’s Department for certification with Respondent as a Deputy Sheriff?

RULES AT ISSUE

12 NCAC 10B .0204(c) (1) and (2)

OFFICIAL NOTICE TAKEN

Pursuant to 12 NCAC 10B .0205(2)(h), the full Commission may:

either reduce or suspend the periods of sanction…or substitute a period of probation in lieu of revocation, suspension or denial following an administrative hearing. This authority to reduce or suspend the period of sanction may be utilized by the Commission when extenuating circumstances brought out at the administrative hearing warrant such a reduction or suspension, in the discretion of the Commission.

BASED UPON the testimony at the hearing and the admitted exhibits, including Respondent’s Exhibit No. 1 (stipulations of facts), the undersigned makes the following:

FINDINGS OF FACT

Stipulated Facts

1. The parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, that the parties received proper Notice of Hearing required pursuant to N.C.G.S.150B-38 and that Petitioner received notice of the proposed denial of his application for his Justice Officer Certification mailed by Respondent on September 25, 2000.

2. The North Carolina Sheriff’s 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, Sub-chapter 10B, to certify Justice Officers as either deputy sheriffs or jailers, and to deny, revoke or suspend such certification.

3. On December 9, 1999, Petitioner completed a Personal History Statement (Form F-3) as a part of the application with Respondent for certification as a deputy sheriff with the Pasquotank County Sheriff’s Office. Question number 47 of that form asks: “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?” Petitioner answered “Yes - Resist, Delay, Obstruct – 01/98, Elizabeth City Police Department – Dismissed 10/98.”

4. On December 9, 1999, Petitioner completed a Personal History Statement (Form F-3) as a part of the application with Respondent for certification as a deputy sheriff with the Camden County Sheriff’s Office. Question number 47 of that form asks: “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?” Petitioner answered “Yes - Resist, Delay, Obstruct – 01/98, Elizabeth City Police Department – Dismissed 10/98.”

5. That 12 NCAC 10B.0204(c)(1) and (2) provides:

(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 of the North Carolina Criminal Justice Education and Training Standards Commission; or

(2) has knowingly and designedly by means of false pretense, deception, fraud, 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.

6. Petitioner was convicted of two Class A Misdemeanor charges of Hunting Across and From a State Right of Way, 1996CR002548 occurring in Chowan County on or about December 16, 1996, and 1997CR001369, occurring in Perquimans County on or about November 11, 1997. Petitioner pled guilty in both cases and paid the financial obligations required in each case. Petitioner did not list these convictions on his Personal History Statement. Petitioner never appeared in a Court of Law regarding these incidents but simply paid the Clerk of Court.

FINDINGS OF FACT

Adjudicated Facts

1. Petitioner is a twenty six (26) year old, married father of a four (4) year old stepdaughter. He is a graduate of Northeastern High School in Elizabeth City, North Carolina. He completed Basic Law Enforcement Training (BLET) at the College of the Albemarle in Elizabeth City, North Carolina in 1998 and went to work with the Perquimans County Sheriff’s Department in December, 1998. He worked in Perquimans for approximately two weeks, at which time he resigned and went to work for the Murfreesboro Police Department. Petitioner worked in Murfreesboro until September, 1999. He is certified in cycle patrol, intoxilyzer and radar operations.

2. Petitioner is employed with the Camden County Sheriff’s Department as a Deputy Sheriff. Petitioner has continued to perform his duties as Deputy Sheriff, without limitation, pending an outcome of his appeal of the North Carolina Sheriff’s Education and Training Standards Commission decision to defer his certification as a Justice Officer.

3. Petitioner has an excellent reputation as a law enforcement officer as testified to by Sheriff Randy Cartwright of Pasquotank County, Sheriff Joe Jones of Camden County, Acting Sheriff Richard Lee McPherson of Camden County, Chief Deputy Doug Hooper of Pasquotank County, Sergeant Larry Belangia of the Murfreesboro Police Department, Deputies James Harrison and Terrence Sutton of Camden County Sheriffs Department, Deputies Bobby Byrum and David Meiggs of Pasquotank County Sheriffs Department, Jay Winslow and Brian Shea employed by Adult Probation and Parole for Camden County and Kelly Jones of the Alcohol Law Enforcement Agency.

4. When Petitioner began working with the Murfreesboro Police Department, he completed the Criminal Justice Education and Training Standards Commission Form F-5A, “Report of Appointment/Application for Certification”. Under the Criminal Record Section on the back of the form, Petitioner initially listed the charge of Resist, Obstruct, and Delay, which was dismissed on November 22, 1998. He then turned the form into his sergeant who completed a background check and discovered two hunting offenses and an offense of underage possession of a malt beverage. The sergeant advised Petitioner that it would be in Petitioner’s best interest to report these additional offenses on his paperwork. Petitioner listed these additional offenses on the F-5A form, signed and dated the form on February 2, 1999. The Criminal Justice Education and Training Standards Commission certified Mr. Brothers as a police officer.

5. The instructions preceding the Criminal Record Section of the Criminal Justice Form reads as follows:

Each applicant must list any and all criminal charges regardless of the date of offense and the disposition (to include dismissals, not guilty, nol pros, PJC, or any other disposition where you entered a pleas of guilty.) Do not include minor traffic offenses (N.C.G.S. Chapter 20), but specifically include DWI, DUI, driving while under the influence of drugs, driving while license permanently revoked or suspended, or failure to stop in event of accident.

Similarly, the Note preceding Question 47 on the Form F-3 Personal History Statement reads as follows:

NOTE: in the following question, include all offenses other than minor traffic offenses. The following are not minor traffic offenses and must be listed below: DWI, DUI (alcohol and drugs), failure to stop in the event of an accident, and driving while license permanently revoked or permanently suspended. If any doubt exists in your mind as to whether or not your 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.

6. On December 9, 1999, Petitioner completed Personal History Statements, (Form F-3) as part of his application packages for deputy positions with the Pasquotank County Sheriff’s Office and the Camden County Sheriff’s Office. In response to question number 47, which asks, “Have you ever been arrested by a law enforcement officer of otherwise charged with a criminal offense,” Petitioner only listed the charge of resist, delay, and obstruct.

7. Petitioner admits he failed to list the issuance of two citations for Hunting Across and From a State Road while answering question number 47 on his application for employment with the Pasquotank County and Camden County Sheriff’s Departments. The hunting offenses of Petitioner are both Class A misdemeanors. He was not charged with discharging a firearm. Petitioner received citations for both hunting offenses. He was never arrested, handcuffed or taken before a magistrate and never appeared in Court for these charges. Petitioner paid a $25.00 fine for each hunting offense to the Clerk of Court of each respective County.

8. Question number 47 of the application makes no reference to listing wildlife violations and excludes any minor traffic offenses. Petitioner believes Question number 47, when read in conjunction with other questions, is confusing to less experienced applicants such as the Petitioner. Deputy James Harrison testified that he finds the questions on the application relating to criminal offenses confusing.

9. Question number 50 of the application asks in follow up to Question number 47: Have you ever been required to pay a fine in excess of $50.00?

10. Upon receiving Petitioner’s applications, Respondent initiated a background investigation. Respondent found that the charge of possession of a malt beverage while underage, while not listed on Petitioner’s Personal History Statement for Pasquotank County, was discovered during the background investigation of Petitioner. In reviewing Petitioner’s applications, Respondent sent a letter to Pasquotank County, requesting information as to whether possession of a malt beverage while underage and two hunting violations were discussed with background investigators or otherwise divulged by Petitioner to the investigators. Pasquotank County Chief Deputy Hooper confirmed that he had discovered the underage possession of a malt beverage but he was not aware of Petitioner’s two hunting violations. Petitioner’s failure to list possession of a malt beverage while underage was not found to be a reason to defer certification and is not a part of this hearing.

11. Respondent reviewed Petitioner’s application package for the Camden County Sheriff’s Office which was with Respondent at approximately the same time (or within a couple of weeks) as the Pasquotank County Sheriff’s Office application package and discovered that though Petitioner only listed a charge of resist, delay, and obstruct, the Petitioner’s criminal history record included with the application showed Petitioner’s underage drinking offense, as well as the two hunting violations. According to Ted Sauls, Assistant Director of Respondent Commission, the criminal record “is primarily submitted by the hiring agency and the applicant.” Accepted as fact is (according to Mr. Sauls) “some agencies ask the applicant to provide them with a certified criminal history from the County Clerk of Court where they have lived for the past six months.”

12. Mr. Sauls opined that the Commission “found Mr. Brothers was not given the opportunity to correct that particular F-3 in Camden County,” and under “our (Commission) policy and procedure we were allowed to resolve that discrepancy in his favor because those offenses did accompany the application.” Petitioner’s failure to list the hunting violations in the Camden County package was not found to be a reason to defer certification (Respondent’s Exhibit 15 lists only failure to list for Pasquotank County Sheriff’s Office) and is not a part of this hearing.

13. Standard operating procedure for Mr. Saul on behalf of Respondent Commission is after receiving an application “for sheriff’s certification” he or his staff checks for certification with any other agency, including a check to see if there is certification through Criminal Justice Education and Training Standards Commission. That was likewise done in the case of the Petitioner.

14. Petitioner’s applications to the Pasquotank County Sheriff’s Office and to the Camden County Sheriff’s Office accurately provided that he had never been arrested for a felony, a Class B misdemeanor, or had his driving privileges suspended.

15. Petitioner fully cooperated with the Commission and with the investigation of his alleged omissions.

16. According to Ted Sauls all institutions that are certified to teach BLET courses are required to follow a standard curriculum. This curriculum includes an orientation block, which includes instruction on the rules and regulations of the Criminal Justice Commission and the Sheriffs’ Commission as to the reporting of criminal offenses upon application for certification. Petitioner completed BLET at a certified institution. Petitioner received no instruction as to wildlife offenses during his BLET training.

17. Upon receiving information from Pasquotank and Camden Counties, the Sheriffs’ Commission staff submitted all information on Petitioner’s certification to the Respondent’s Probable Cause Committee to determine if Petitioner had violated its rules by omitting portions of his criminal history record from his Personal History Statements. Ted Sauls testified he was present at the probable cause hearing before the Sheriff’s Commission in which the decision was made to suspend the Petitioner’s certification. Mr. Sauls’ states that no discussion or decision took place regarding the Petitioner’s intentional or knowing misrepresentation of information on his application. The Sheriff’s Commission “spent most of their deliberation on the resist, obstruct and delay offense that was dismissed and whether or not there was a sufficient level of evidence discovered to show that the offense was committed,” and that charge was ultimately found not to be a reason to deny the Petitioner’s certification.