STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 04 DOJ 1631

______

Gerlie Poston, Jr., )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION )

North Carolina Sheriffs’ Education and )

Training Standards Commission, )

Respondent. )

______

THIS MATTER came on for hearing on January 27, 2005 before Administrative Law Judge Augustus B. Elkins II, in Raleigh, 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

Petitioner: Gerlie Poston, Jr., pro se

Petitioner

2330 Sumter Drive

Garner, NC 27529-8646

Respondent: Lorrin Freeman

Attorney for Respondent

Department of Justice

Law Enforcement Liaison Section

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Is the Respondent’s proposed denial of the Petitioner’s application for certification as a justice officer supported by a preponderance of the evidence?

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearings, 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 the Petitioner received the Notification of Probable Cause to Deny Justice Officer Certification letter mailed by the Respondent on September 3, 2004. (Respondent’s Exhibit 1)

2. The North Carolina Sheriff’s Education and Training Standards Commission has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10, to certify justice officers and to revoke, suspend, or deny such certification.

3. The provision found in the North Carolina Administrative Code at 12 NCAC 10B .0204(d)(2) provides:

(d) 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 has committed or been convicted of:

(2) a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor within the five-year period prior to the date of appointment.

4. The criminal offense of Assault on a Female, is in violation of N.C.G.S. § 14-33(c)(2), and constitutes a Class B misdemeanor pursuant to 12 NCAC 10B .0103(10)(b) of the Commission’s rules.

5. 12 NCAC 10B .0205(3)(d) provides that, “When the Commission suspends, revokes or denies the certification of a justice officer, the period of sanction shall be:

(3) for an indefinite period, but continuing so long as the stated deficiency, infraction, or impairment continues to exist, where the cause of sanction is:

(d) commission or conviction of offenses as specified in 12 NCAC 10B .0204(d)(2), (3), (5) and (6);

6. Petitioner was charged with the criminal offense of Assault on a Female on or about May 31, 2000 for conduct arising out of an incident on May 30, 2000. (Respondent’s Exhibit 6)

7. Petitioner signed a Deferred Prosecution Agreement for Domestic Violence form on or about July 3, 2000, where he acknowledged that he committed the offense of Assault on a Female and agreed to enter into a deferred prosecution program whereby the criminal charge of Assault on a Female would be dismissed upon Petitioner’s completion of the H.A.L.T. (Halting Abuse through Learning and Treatment) program and payment of restitution in the amount of thirty dollars ($30.00). (Respondent’s Exhibit 7)

8. Petitioner completed the H.A.L.T. program and subsequently the Assault on a Female charge was dismissed on or about February 18, 2002. (Respondent’s Exhibit 8)

9. Petitioner was appointed as a detention officer with the Wake County Sheriff’s Office on or about August 20, 2003. (Respondent’s Exhibit 3)

10. As part of Petitioner’s application for justice officer certification, Petitioner completed and signed a Personal History Statement (Form F-3) on or about May 4, 2003. Question number 47 of that form asks, “Have you ever been arrested or otherwise charged with a criminal offense?” Petitioner checked “Yes” and listed “Assault charge was dismissed not Guilty- Johnston County”. (Respondent’s Exhibit 4)

11. Diane Konopka, Investigator for the N.C. Sheriffs’ Standards Division, testified that her duties as an investigator include the review of applicants’ information to ensure that they meet the minimum standards for all justice officers certified in North Carolina and to investigate any violations of the Respondent’s rules.

12. As a result of Petitioner listing an Assault on a Female charge on his Personal History Statement Form F-3, Ms. Konopka initiated an investigation to see if Petitioner would qualify for justice officer certification.

13. As part of the investigation, Ms. Konopka obtained both written statements from the Petitioner and the victim, Ms. Rosalyn Poston, as to the events that occurred on or about May 30, 2000 that led to the Petitioner being charged with the criminal offense of Assault on a Female. (Respondent’s Exhibits 10, 11)

14. Petitioner’s wife, Rosalyn Poston, and Petitioner have been married for approximately twenty (20) years. Petitioner and his wife have two children together.

15. Ms. Poston testified that on or about May 30, 2000, she and the two children arrived home around 10:30 p.m. Ms. Poston and the two children had been shopping at Wal-Mart. Petitioner was home at the time they arrived. Ms. Poston testified that the Petitioner became upset because he felt it was too late for their children to be up on a school night. Petitioner and his wife began to argue. Ms. Poston testified that she was holding their youngest child in her right arm when Petitioner became angry and struck the side of her face with an open hand. Ms. Poston testified that Petitioner only struck her one time.

16. Petitioner indicated in a written statement and testified at the hearing that he struck his wife inadvertently when he reached to take his youngest child out of his wife’s arms. (Respondent’s Exhibit 11) Petitioner had just recently returned home following military service when this incident occurred and was undergoing a time of adjustment. Petitioner testified that he admits that he was charged with the criminal offense of Assault on a Female.

17. Petitioner has no other criminal charges on his record other than the Assault on a Female charge arising out of the incident of May 30, 2000.

18. Petitioner expressed his desire to work as a detention officer with the Wake County Sheriff’s Office. He has had no disciplinary actions against him since he began working for the Wake County Sheriff’s Office.

19. Mr. Frank Gunter was called by Petitioner and testified. He is the Director of the Division of Detention Operations Center at the Wake County Sheriff’s Office. Mr. Gunter testified that Petitioner was that type of person that he wanted to testify on behalf of. Petitioner had told Mr. Gunter of the charge. Mr. Gunter stated that Mr. Poston is an excellent officer, very professional and a good trainer for new officers. He stated Mr. Poston was mature and did not have a temper. If he would ever become upset, Mr. Poston always kept any temper he may have under control. Mr. Gunter said he very much wanted to keep Mr. Poston on as a detention officer with the Wake County Sheriff’s Office.

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. This matter is properly before the undersigned Administrative Law Judge and jurisdiction and venue are proper.

2. Pursuant to 12 NCAC 10B .0204(d)(2), the Commission may deny the certification of a justice officer when the Commission finds that the certified officer has committed or been convicted of a Class B misdemeanor within the five-year period prior to appointment. The criminal offense of Assault on a Female is a Class B misdemeanor as defined by Respondent’s rules. Petitioner committed the Class B misdemeanor offense of Assault on a Female, in violation of N.C. Gen. Stat. §14-33(c)(2), on or about May 30, 2000 which is approximately four years and ten months from today’s date.

3. Pursuant to 12 NCAC 10B .0205(3)(d), when the Commission suspends, revokes or denies the certification of a justice officer, the period of sanction shall be for an indefinite period, but continuing so long as the stated deficiency, infraction, or impairment continues to exist, where the cause of sanction is commission or conviction of offenses as specified in 12 NCAC 10B .0204(d)(2), (3), (5) and (6).

BASED UPON the foregoing Findings of Fact and Conclusions of Law, the Undersigned makes the following:

PROPOSAL FOR DECISION

NOW, THEREFORE, based on the foregoing, the Undersigned hereby finds proper authoritative support of the Conclusion of Law noted above. It is hereby recommended that Petitioner’s certification be denied until May 30, 2005 for the commission of the Class B misdemeanor offense of Assault on a Female within the five-year period prior to the date of appointment.

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this Proposal for Decision, to submit proposed Findings of Fact and to present oral and written arguments to the agency. N.C.G.S. § 150B-40(e).

The agency that will make the final decision in this contested case is the North Carolina Sheriffs’ Education and Training Standards Commission.

A copy of the final agency decision or order shall be served upon each party personally or by certified mail addresses to the party at the latest address given by the party to the agency and a copy shall be furnished to any attorney of record. N.C.G.S. § 150B-42(a).

IT IS SO ORDERED.

This the 24th day of March, 2005.

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Augustus B. Elkins II

Administrative Law Judge

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