State of North Carolina s91

STATE OF NORTH CAROLINA IN THE OFFICE OF COUNTY OF PITT ADMINISTRATIVE HEARINGS 01 DOJ 0444 ALAN HENRY ROEBUCK Petitioner, ) ) v. ) ) PROPOSAL FOR DECISION N.C. SHERIFF’S EDUCATION ) AND TRAINING STANDARDS ) COMMISSION ) Respondent. )

THIS MATTER came on for hearing before the undersigned Administrative Law Judge by request of the Respondent pursuant to N.C.G.S. §150B-40(e) for the designation of an Administrative Law Judge to preside at the hearing of a contested case under Article 3, Chapter 150B of the North Carolina General Statutes. The case was heard by the undersigned Administrative Law Judge on July 27, 2001:

APPEARANCES

Petitioner: Ernest L. Conner, Jr. Appearing for Petitioner

Respondent: Brian L. Blankenship Assistant Attorney General

FINDINGS OF FACT

(Stipulated Facts)

1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, that both parties received notice of hearing, and that Petitioner received the Proposed Revocation of Justice Officer Certification letter mailed by Respondent on March 2, 2001.

2. The North Carolina Sheriffs’ 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, Subchapter 10B, to certify justice officers as either deputy sheriffs or jailers, and to deny, revoke or suspend such certification.

3. Petitioner was issued a general certification (GNH 246473602) on November 22, 1996 by the Commission to serve as a part-time justice officer with the Pitt County Sheriff’s Office. 4. That 12 NCAC 10B .0204(d)(1) provides that 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 a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor and which occurred after the date of initial certification.

5. That 12 NCAC 10B .204(b)(2) provides that the Commission shall revoke, deny, or suspend the certification of a justice officer when the Commission finds:

That the applicant for certification or the certified officer fails to meet or maintain any of the minimum employment or certification standards required by 12 NCAC 10B .0300.

6. Petitioner was arrested on September 5, 2000 for Misdemeanor Assault on a Female which allegedly occurred on or about September 4, 2000, when Petitioner unlawfully and willfully assaulted and struck his wife, Donna Roebuck, by grabbing and twisting her arm, and pushing her in the chest with his index finger.

(Adjudicated Facts)

7. Ms. Donna Roebuck testified that she is currently married to Petitioner, although a divorce is pending.

8. Ms. Donna Roebuck testified that on September 4, 2000, she and Petitioner had an argument about going to a birthday party. Shortly thereafter, Petitioner asked Ms. Roebuck to prepare him something to eat. As Ms. Roebuck was preparing food for Petitioner, he walked into the kitchen and tapped Ms. Roebuck on the left side of her face with his right hand.

9. Ms. Roebuck immediately tapped Petitioner’s face the same way he had tapped her face. According to Ms. Roebuck, “it was not a hard slap or anything like that.”

10. Petitioner then jumped behind Ms. Roebuck, grabbed her arm and twisted it behind her back. Ms. Roebuck told Petitioner that he was hurting her and asked him to let go.

11. Ms. Roebuck testified that it hurt when Petitioner twisted her arm behind her back.

12. Petitioner responded by saying, “Don’t slap me.” Ms. Roebuck again told Petitioner that he was hurting her and asked him to stop.

13. After approximately thirty seconds, Petitioner let go of Ms. Roebuck’s arm. 14. Ms. Roebuck testified that she asked Petitioner to leave, but he refused. Ms. Roebuck then told Petitioner that if he would not leave, she would. As Ms. Roebuck attempted to leave, an argument ensued.

15. Ms. Roebuck testified that Petitioner began poking her chest with his index finger.

16. On another occasion when she attempted to leave, Petitioner “tussled” over the keys to her car. Ms. Roebuck testified that “[t]here was a lot of pushing and pulling from where I was trying to keep the keys and he was pulling and that kind of thing.”

17. On September 5, 2001, Ms. Roebuck called the Sheriff’s Department and reported the incident of the previous day. Deputy Glenn Ferrell responded.

18. Ms. Roebuck testified that bruises were evident on her body where Petitioner had grabbed her and pushed her. Ms. Roebuck identified several photographs taken by Deputy Glenn Ferrell which showed bruises on her chest and arms.

19. Deputy Glenn Ferrell, Domestic Violence Unit, Pitt County Sheriff’s Department, testified that he received a call on September 5, 2000, to investigate an allegation by Ms. Roebuck that she had been assaulted by Petitioner.

20. Deputy Ferrell proceeded to Ms. Roebuck’s mother’s house where he interviewed her.

21. Deputy Ferrell testified that he noticed bruising on Ms. Roebuck’s arms and chest. Deputy Ferrell took photographs of the bruises on September 5th and 6th.

22. Deputy Ferrell also interviewed Petitioner on September 5th.

23. Petitioner told Deputy Ferrell that he and his wife were horseplaying in the kitchen when he tapped her face with his fingertips. His wife, in turn, slapped him. Petitioner told his wife that she had hit him too hard. The next thing he knew, they were in an argument.

24. Petitioner admitted that he grabbed her arms, but said he did so in an effort to calm her down.

25. Petitioner also admitted that he twisted his wife’s arm behind her back, but claimed he did so while they were horseplaying.

26. Deputy Ferrell showed Petitioner the pictures of his wife’s bruises. Petitioner said he was unsure what caused the bruise on her chest. He stated that the bruises on her arms were caused when he tried to calm her down.

27. Mr. Ted Sauls, Assistant Director of the North Carolina Sheriff’s Education and Training Standards Commission, testified that Petitioner came to his attention when the Pitt County Sheriff’s Department reported that Petitioner had been arrested for assault on a female. 28. At the time of his arrest, Petitioner was certified as a deputy by the Sheriff’s Commission.

29. Mr. Sauls testified that the Sheriff’s Commission has determined that assault on a female is a Class B misdemeanor, as defined in 12 NCAC 10B .0103(10)(b). Mr. Sauls further testified that Class B misdemeanors, as determined by the Sheriff’s Commission, are published in a Class B misdemeanor manual. Assault on a female is listed in the Class B Misdemeanor Manual under G.S. §14-33(c), assault, battery with circumstances.

30. Mr. Sauls testified that Petitioner’s case was heard by the Probable Cause committee of the Sheriff’s Commission. As reflected in Respondent’s Exhibit 14, Notification of Probable Cause to Revoke Certification, the Probable Cause committee determined that Petitioner committed a Class B misdemeanor, as defined in 12 NCAC 10B .0103(10)(b).

CONCLUSIONS OF LAW

1. The parties are properly before the undersigned Administrative Law Judge and jurisdiction and venue are proper.

2. 12 NCAC 10B .0204(d)(1) provides that 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 a crime or unlawful act defined in 12 NCAC 10B .0103(10) (b) as a Class B misdemeanor and which occurred after the date of initial certification.

3. Petitioner did commit the Class B misdemeanor of assault on a female, in violation of G.S. §14-33(c)(2), by grabbing and twisting his wife’s arm and pushing her in the chest with his index finger.

4. Petitioner’s commission of the aforementioned Class B misdemeanor is in violation of 12 NCAC 10B .0204(d)(1).

5. Respondent’s proposed suspension of Petitioner’s certification as a justice officer is supported by substantial evidence.

6. Pursuant to 12 NCAC 10B .0205, Respondent, in its discretion, may lessen or reduce a period of sanction subsequent to an administrative hearing based on material misrepresentation. PROPOSAL FOR DECISION

WHEREFORE, based on the foregoing Findings of Fact and Conclusions of Law, the undersigned Administrative Law Judge recommends that the Petitioner’s application for certification as a justice officer be suspended for a period of five years and that such suspension be suspended for a period of five years on the condition that Petitioner commit no further offenses in violation of respondent rules and maintain good moral character. The Respondent should exercise any discretion it deems appropriate in lessening or reducing the period of sanction.

NOTICE

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

This is the 30 th day of November, 2001.

______Beecher Gray Administrative Law Judge