State of North Carolina s57

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 06 DOJ 1508

ROBERT ANTHONY WILSON )

Petitioner, )

)

v. ) DECISION

)

NORTH CAROLINA DEPARTMENT )

OF JUSTICE, COMPANY POLICE )

PROGRAM, )

Respondent. )

In accordance with North Carolina General Statute § 150B-23, Petitioner requested the designation of an administrative law judge to preside at an Article 3, North Carolina General Statute § 150B, contested case hearing of this matter. Based upon the Petitioner’s request, Administrative Law Judge Beecher R. Gray heard this contested case in Raleigh, North Carolina on January 30, 2007.

APPEARANCES

Petitioner: Nardine M. Guirguis, Esq.

Attorney for Petitioner

Two Hanover Square, Suite 2350

Raleigh, North Carolina 27601

Respondent: Ashby T. Ray, Assistant Attorney General

J. Joy Strickland, Assistant Attorney General

Attorneys for Respondent

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Did the Respondent properly deny Petitioner’s company police officer commission?

RULES AT ISSUE

12 NCAC 02I .0202(4)

12 NCAC 09A .0204(b)(6)

12 NCAC 02I .0213(a)(4)

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 properly are before this Administrative Law Judge, in that jurisdiction and venue are proper, both parties received Notice of Hearing, and Petitioner received the notification of probable cause to deny company police commission letter mailed by the Respondent on June 28, 2006. (Respondent’s Exhibit 5)

2. Respondent has the authority granted under Chapter 74E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 2I, to commission company police officers and to revoke, suspend or deny such certification.

3. Respondent found probable cause to deny Petitioner’s company police officer commission as a result of two material omissions from the Personal History Statement (Form F3) the Petitioner completed and signed as part of his application with Person Caswell Lake Authority on or about January 30, 2006. (Respondent’s Exhibit 1)

4. The first material omission outlined in the finding of probable cause to deny Petitioner’s company police officer commission arises from the Personal History Statement (Form F3) completed and signed by the Petitioner on or about January 30, 2006 as part of his application for employment with the Person Caswell Lake Authority. Specifically, the Petitioner responded to question number 39, which reads, “Were you ever court- martialed, tried on charges or were you the subject of a summary court, deck court, or non judicial punishment (Captain’s mast, company punishment, Article 15, etc.), or any other disciplinary action while a member of the armed forces?” by listing July 2000, DUI, Article 15 and 1996- Failure to Repair, Art. 15. None of the Petitioner’s answers included any disciplinary action taken against him for “False Sworn Statements” or “False Swearing” in 1991. (Respondent’s Exhibit 1 & 5)

5. The second material omission outlined in the finding of probable cause to deny Petitioner’s company police officer commission also arises from the Personal History Statement (Form F3) completed and signed by the Petitioner on or about January 30, 2006 as part of his application for employment with the Person Caswell Lake Authority. Specifically, the Petitioner responded to question number 39 of the Personal History Statement (Form F3),which reads, “Were you ever court -martialed, tried on charges or were you the subject of a summary court, deck court, or non judicial punishment (Captain’s mast, company punishment, Article 15, etc.), or any other disciplinary action while a member of the armed forces?” by listing July 2000, DUI, Article 15 and 1996- Failure to Repair, Art. 15. None of the Petitioner’s answers included any disciplinary action taken against him for “Larceny”, “Conspiracy to Commit Larceny” and “False Swearing” in 1993. (Respondent’s Exhibit 1 & 5)

6. Page ten (10) of the Personal History Statement (Form F3), which was completed and signed by Petitioner on or about January 30, 2006, as part of his application with the Person Caswell Lake Authority, contains the following paragraph just above the Petitioner’s notarized signature:

I hereby certify that each and every statement made on this form is true and complete and I understand that any misstatement or omissions of information will subject me to disqualification or dismissal. I also acknowledge that I have a continuing duty to update all information contained in this document. I will report to the employing agency and forward to the NC Criminal Justice Education and Training Standards Commission any additional information which occurs after the signing of this document.

(Respondent’s Exhibit 1)

7. Petitioner, while on active duty with the United States Army, received a written reprimand by military authorities for “False Statement” and “False Swearing” for an incident that occurred in 1991 as a result of the Petitioner reporting that his automated teller machine (ATM) card had been stolen and that unauthorized transactions were made from his bank account. When subsequently re-interviewed by the military police, Petitioner provided a new statement and admitted that he had in fact loaned his card to a friend and given him the pin number. (Respondent’s Exhibit 4).

8. Petitioner also received an oral reprimand from military officials while on active duty with the United States Army which resulted in his forfeiture of pay for one month(suspended for 6 months), reduction in rank from E-3 to E-2 (suspended for 6 months), and extra duty for 14 days for “Larceny”, “Conspiracy to Commit Larceny” and “False Swearing” for an incident that occurred in 1993. This incident was a result of the Petitioner and his fellow soldiers removing various items off of a Toyota car that they found on the side of the road. The items removed included tires and rims. (Respondent’s Exhibit 4)

9. On June 11, 2006 the Petitioner wrote a letter to Vickie Huskey, the Company Police Administrator, in which he explained why he failed to list his complete record of military discipline on the Personal History Statement (Form F3), which was completed and signed by the Petitioner on or about January 30, 2006 as part of his application with Person Caswell Lake Authority. The Petitioner referred to receiving an Article 15 for larceny and making a false statement in his letter of explanation and then stated, “ The fact is I had completely forgotten that this incident occurred while I was in service.” (Respondent’s Exhibit 3)

10. Petitioner testified that, during his ten years of military service, there were only three (3) occasions when he was questioned by the military police as part of a criminal investigation. Those incidents were the 1991 False Swearing, the 1993 Larceny, Conspiracy to Commit Larceny and False Swearing and the 2000 Driving under the Influence (DUI). Of those three incidents, the Petitioner claims he only remembered the DUI when he completed and signed his Personal History Statement (Form F3) on or about January 30, 2006.

11. Sam Newton Jr., the Head of Person Caswell Lake Authority, testified on the Petitioner’s behalf that the Petitioner had been a good employee, was honest, wouldn’t steal and was always on time. Newton also testified that credibility is very important for sworn law enforcement officers and that he would recommend the Petitioner for other employment.

12. Petitioner’s assertion that he simply forgot the 1991 and 1993 incidents in question is not credible in light of a preponderance of the evidence presented, including the Petitioner’s own testimony that, in 10 years of military service, he only had three encounters with military police where he was interviewed as a suspect.

13. Petitioner made a material misrepresentation of fact on the Personal History Statement (Form F3), which was completed and signed by Petitioner on or about January 30, 2006 as part of his application with Person Caswell Lake Authority in that, in response to question number 39, he failed to state that during his military service he had been disciplined for False Sworn Statement and False Swearing by the military in 1991.

14. Petitioner made a material misrepresentation of fact on the Personal History Statement (Form F3), which was completed and signed by Petitioner on or about January 30, 2006 as part of his application with Person Caswell Lake Authority in that, in response to question number 39, he failed to state that during his military service he had been disciplined for Larceny, Conspiracy to Commit Larceny and False Swearing by the military in 1993.

BASED UPON the foregoing Findings of Fact and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case. The parties received proper notice of the hearing in this matter. To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to the given labels.

3. 12 NCAC 02I .0212(c)(2) states that a company police commission shall be denied upon a finding that the officer fails to meet any of the required minimum standards as specified in 12 NCAC 02I. 0202.

4. 12 NCAC 02I .0202(4) states that:

Every company police officer must meet the following requirements to obtain and maintain a company police commission; meet the minimum standards for criminal justice officers established by the North Carolina Criminal Justice Education and Training Standards Commission, appearing in Title 12, Chapter 9 of the North Carolina Administrative Code; which standards are hereby incorporated by reference, and shall automatically include any later amendments and editions of the referenced material.

5. 12 NCAC 09A .0204(b)(6) states that the Commission may deny the certification of a criminal justice officer when the Commission finds that the applicant for certification has knowingly made a material misrepresentation of any information required for certification or accreditation.

6. 12 NCAC 02I .0213(a) states that:

When the Attorney General, or his designee, suspends or denies the commission of a company police officer, the period of sanction shall not be less than three years. However, the Attorney General, or his designee, may either reduce or suspend the period of sanction under 12 NCAC 2I .0212(b) or substitute a period of probation in lieu of suspension of a commission following an administrative hearing, where the cause of sanction is:

(4) material misrepresentation of any information required for company police commissioning.

7. The Petitioner has the burden of proof. The Petitioner has failed to show, by a preponderance of the evidence, that Respondent improperly denied his company police officer commission.

8. Petitioner made a material misrepresentation of fact on the Personal History Statement (Form F3), which was completed and signed by Petitioner on or about January 30, 2006, as part of his application with Person Caswell Lake Authority in that, in response to question number 39, he failed to state that during his military service he had been disciplined for False Sworn Statement and False Swearing by the military in 1991.

9. Petitioner made a material misrepresentation of fact on the Personal History Statement (Form F3), which was completed and signed by Petitioner on or about January 30, 2006 as part of his application with Person Caswell Lake Authority in that, in response to question number 39, he failed to state that during his military service he had been disciplined for Larceny, Conspiracy to Commit Larceny and False Swearing by the military in 1993.

10. The Personal History Statement (Form F3) completed by Petitioner on or about January 30, 2006, as part of his application with Person Caswell Lake Authority, was a necessary and required part of the application process to become a commissioned company police officer.

11. The Respondent properly denied the Petitioner’s company police officer commission.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends that the Respondent deny the Petitioner’s company police officer commission for a period of three years for making material misrepresentations of fact on the Personal History Statement (Form F3) completed by the Petitioner as part of his application with Person Caswell Lake Authority.