State of North Carolina s86

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF MECKLENBURG 08 DOJ 1872

) Darryl Gerald ) Petitioner, ) ) v. ) DECISION ) N. C. Criminal Justice Education and Training ) Standards Commission ) Respondent. ) )

In accordance with North Carolina General Statute § 150B-40(e), Respondent requested the designation of an administrative law judge to preside at an Article 3A, North Carolina General Statute § 150B, contested case hearing of this matter. Based upon the Respondent’s request, Administrative Law Judge J. Randall May heard this contested case in Charlotte, North Carolina on October 23, 2009.

APPEARANCES

Petitioner: Joseph L. Ledford Attorney for Petitioner 130-A North McDowell Street Charlotte, North Carolina 28204

Respondent: Jane Ammons Gilchrist Assistant Attorney General N.C. Department of Justice 9001 Mail Service Center Raleigh, North Carolina 27699-9001

Is Respondent’s proposed suspension of Petitioner’s law enforcement officer certification based upon Petitioner’s knowingly making material misrepresentations of any information required for certification supported by a preponderance of the evidence?

RULES AT ISSUE

12 NCAC 09A.0204(b)(6) 12 NCAC 09A.0205(b)(4)

1 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 Administrative Law Judge makes the following FINDINGS OF FACT.

In making the FINDINGS OF FACT, the undersigned Administrative Law Judge 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 Petitioner received the notification of probable cause to suspend law enforcement officer certification letter mailed by the Respondent on July 11, 2008.

2. The North Carolina Criminal Justice Education and Training Standards Commission has the authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9A, to certify law enforcement officers and to revoke, suspend, or deny such certification.

3. 12 NCAC 09A.0204(b)(6) provides that the Commission may suspend, revoke, or deny the certification of a criminal justice officer when the Commission finds that the applicant for certification or the certified officer ... has knowingly made a material misrepresentation of any information required for certification or accreditation.

4. 12 NCAC 09A.0205(b)(4) provides that when the Commission suspends or denies the certification of a criminal justice officer, the period of sanction shall be not less than five years; however, the Commission may either reduce or suspend the period of sanction under Paragraph (b) of this Rule; or substitute a period of probation in lieu of suspension of certification following an administrative hearing, where the cause of sanction is ... material misrepresentation of any information required for certification or accreditation.

5. Petitioner applied for certification as a full-time law enforcement officer with Marshville Police Department.

6. The Marshville Police Department submitted to the Criminal Justice Standards Division a Report of Appointment/Application for Certification, Form F-5A, for Petitioner on June 7, 2007. (Respondent’s Exhibit 1) The Form F-5A indicated that Petitioner had two criminal charges, one for non support, and one for harassing phone calls. Petitioner did

2 not include his conviction for criminal contempt based upon an Order to Show Cause. 7. Petitioner signed the Form F-5A on June 5, 2007. The Criminal Record Section contains the following language:

ALL APPLICANTS & TRANSFERS MUST READ AND COMPLETE THIS CRIMINAL RECORD SECTION IN THEIR OWN HANDWRITING.

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 plea 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, speeding to elude arrest, or duty to stop in event of accident. If you list a charge(s), please attach certified and true copies of warrant(s) and judgment(s) for each offense, even if documentation and charges have previously been reported to this agency. Attach additional sheets if needed.

8. On the Form F-5A above the Petitioner’s signature is the following statement:

As the applicant for certification, I attest that I am aware of the minimum standards for employment, that I meet or exceed each of those requirements, that the information provided above and all other information submitted by me, both oral and written throughout the employment and certification process, is thorough, complete, and accurate to the best of my knowledge. I further understand and agree that any omission, falsification, or misrepresentation of any factor or portion of such information can be the sole basis for termination of my employment and/or denial, suspension or revocation of my certification at any time, now or later. I further understand that I have a continuing duty to notify the Commission of all criminal offenses which I am arrested for or charged with, plead no contest to, plead guilty to or am found guilty of. If applicable, I specifically acknowledge that my continued employment and certification are contingent on the results of the fingerprint records check and other criminal history records being consistent with the information provided in my Personal History Statement and as reflected in this application.

9. Petitioner provided a written statement, dated June 25, 2007, regarding why he had not listed the contempt charge on the Form F-5A submitted on June 2, 2007. Attached to the statement were documents from the Clerk of Superior Court of Stanly County concerning the contempt charge. (Respondent’s Exhibit 2, p 3) In this case, the undersigned is of the opinion that a law enforcement officer should have known this to be a criminal offense in view of the fact that Petitioner was required to sign a waiver of counsel before proceeding. On November 30, 1998, Petitioner waived his Sixth Amendment right to

3 counsel, an event that is only triggered at a critical stage of a criminal proceeding.

10. On October 23, 2009, Marshville Police Chief Mike Gaddy testified that Petitioner Gerald discussed the show cause order with him and that he did not believe he needed to list it.

11. Petitioner testified that he did not list Norwood on his Marshville application because although he had previously been asked to resign by Norwood, he was subsequently re- hired. Additionally, in his trial testimony (October 23, 2009), Chief Gaddy testified that Petitioner was open and honest with him about Petitioner’s past employment with Norwood.

12. The Marshville Police Department submitted to the Criminal Justice Standards Division a second, revised, Report of Appointment/Application for Certification, Form F-5A, for Petitioner on June 26, 2007. (Respondent’s Exhibit 2) This second Form F-5A indicated that Petitioner had three criminal charges--one for non support; one for harassing phone calls; and one for show cause.

13. On June 5, 2007, Petitioner completed a Personal History Statement as a part of his application for employment with the Marshville Police Department. (Respondent’s Exhibit 3)

14. In response to Question 26 on the Personal History Statement Form F-3 (Respondent’s Exhibit 3) which asks, “If you have ever been discharged or requested to resign from any position because of criminal or personal misconduct or rules violations, give details”: Petitioner listed “Mont. Co. SO”.

15. In response to Question 26 Petitioner failed to indicate that: he was asked to resign from the Biscoe Police Department in 1995; he was dismissed from the Badin Police Department in 1998; and he was asked to resign from the Norwood Police Department in 2000.

16. In completing the Personal History Statement Form F-3, Petitioner signed the Personal History Statement before a Notary Public on June 5, 2007. Petitioner’s signature is below the following statement:

I hereby certify that each and every statement made on this form is true and complete and understand that any misstatement or omissions of information will subject me to disqualification or dismissal.

17. On July 9, 2007, Petitioner sent a fax to Respondent that included a statement, dated July 5, 2007, which addressed discrepancies regarding questions 26 and 31 of the Personal History Statement. (Respondent’s Exhibit 4)

4 18. Petitioner received General Certification to work with the Marshville Police Department on July 11, 2007. (Respondent’s Exhibit 5)

19. Petitioner applied for certification as a full-time law enforcement officer with Norwood Police Department in April 2004.

20. The Norwood Police Department submitted to the Criminal Justice Standards Division a Report of Appointment/Application for Certification, Form F-5A, for Petitioner on April 7, 2004. (Respondent’s Exhibit 6, p 13) The Form F-5A indicated that Petitioner had two criminal charges, one for non support and one for harassing phone calls.

21. Petitioner provided a written statement, dated April 12, 2004, regarding why he had not listed the contempt charge on the Form F-5A submitted on April 7, 2004. Attached to the statement were documents from the Clerk of Superior Court of Stanly County concerning the contempt charge. (Respondent’s Exhibit 6, p 3)

22. The Norwood Police Department submitted to the Criminal Justice Standards Division a second, revised, Report of Appointment/Application for Certification, Form F-5A, for Petitioner on April 13, 2004. (Respondent’s Exhibit 6, p 1) This second Form F-5A indicated that Petitioner had three criminal charges: one for non support; one for harassing phone calls; and one for contempt of court.

23. The Norwood Police Department submitted to the Criminal Justice Standards Division a Report of Separation, Form F-5B, for Petitioner on May 18, 2000. The Form F-5B indicated that Petitioner had been given the option to resign or be terminated from the Norwood Police Department. Resignation was designated as the Reason for Separation. (Respondent’s Exhibit 7)

24. On December 30, 1998, Petitioner completed a Personal History Statement as a part of his application for employment with the Lilly Protection Company Police. (Respondent’s Exhibit 8)

25. In response to Question 26 on the Personal History Statement Form F-3 (Respondent’s Exhibit 8) which asks, “If you have ever been discharged or requested to resign from any position because of criminal or personal misconduct or rules violations, give details:” Petitioner listed “Mont. County Sheriff’s Dept. For violation of policy. Badin Police Dept. unknown”.

26. On an additional handwritten sheet attached to the Form F-3, Petitioner indicated in response to Question 26 that he was “Terminated due to violating policy--for using profane language to a female”.

27. In response to Question 26 Petitioner failed to indicate that he left employment with Quik Chek due to an allegation of stealing.

5 28. In response to Question 31 on the Personal History Statement Form F-3 (Respondent’s Exhibit 8) which states, “List all jobs you have held in the last ten years. Put your present or most recent job first. If you need more space, you may attach additional sheets. Include military service in proper time sequence and temporary part-time jobs”. Petitioner did not list his employment with Quik Chek from November 1989 through February 1990.

29. In Response to Question 31 Petitioner indicated that: he resigned from the Badin Police Department; he resigned from the Biscoe Police Department; and the reason he left the Montgomery Sheriff’s Department was “open”.

30. On an additional handwritten sheet attached to the Form F-3, Petitioner indicated that he was asked to resign from the Badin Police Department by the Chief of Police or he would be fired. Petitioner also indicated that he resigned from the Biscoe Police Department so that no pressure would be put on the chief by the sheriff.

31. In completing the Personal History Statement Form F-3, Petitioner signed the Personal History Statement before a Notary Public on December 30, 1998. Petitioner’s signature is below the following statement:

I hereby certify that each and every statement made on this form is true and complete and I understand that any misstatement or omission of information will subject me to disqualification or dismissal.

32. On March 9, 1999, a Background Investigation was conducted as a part of Petitioner’s application for employment with the Lilly Protection Company Police. (Respondent’s Exhibit 16)

33. The Background Investigation indicated that Petitioner was asked to resign from the Biscoe Police Department. (Respondent’s Exhibit 16, pp 6-7)

34. On December 18, 1995, Petitioner completed a Personal History Statement as a part of his application for employment with the Badin Police Department. (Respondent’s Exhibit 9)

35. In response to Question 26 on the Personal History Statement Form F-3 (Respondent’s Exhibit 9) which asks, “If you have ever been discharged or requested to resign from any position because of criminal or personal misconduct or rules violations, give details:” Petitioner stated: “Yes, rule violations”.

36. In response to Question 26 Petitioner failed to indicate that he left employment with Quik Chek due to an allegation of stealing.

37. In response to Question 31 on the Personal History Statement Form F-3 (Respondent’s

6 Exhibit 9) which states, "List all jobs you have held in the last ten years. Put your present or most recent job first. If you need more space, you may attach additional sheets. Include military service in proper time sequence and temporary part-time jobs”. Petitioner did not list his employment with Quik Chek from November 1989 through February 1990.

38. In Response to Question 31 Petitioner indicated that the reason he left the Montgomery Sheriff’s Department was “open” and that he resigned from the Biscoe Police Department.

I hereby certify that each and every statement made on this form is true and complete and understand that any misstatement or omission of information will subject me to disqualification or dismissal.

40. The Badin Police Department submitted to the Criminal Justice Standards Division a Report of Separation, Form F-5B, for Petitioner on October 7, 1998. The Form F-5B indicated that the Reason for Separation was dismissal. (Respondent’s Exhibit 10)

41. Petitioner testified that he did not indicate that he was asked to resign from the Badin Police Department because it was his recollection that he resigned because of an issue with Badin Police Chief, Steve Dye, who had illegally instructed Petitioner to cut off a lock during a search. This was corroborated at the hearing on October 23, 2009, by the testimony of his Badin Police Department supervisor, Brian Crump.

42. Petitioner’s recollection was further corroborated by his resignation letter from the Badin Police Department on October 2, 1998. (Petitioner’s Exhibit 6)

43. The Biscoe Police Department submitted to the Criminal Justice Standards Division a Report of Separation, Form F-5B, for Petitioner on December 1, 1995. The Form F-5B indicated that the Reason for Separation was resignation. (Respondent’s Exhibit 11)

44. Petitioner testified that he resigned from the Biscoe Police Department. He attempted to corroborate this by the Biscoe Police Department’s Form F-5B which lists Petitioner’s reason for leaving as “resignation” and further stated, “This Agency would consider this individual for reappointment”. (Petitioner’s Exhibit 4)

45. On December 29, 1992, Petitioner completed a Personal History Statement as a part of his application for employment with the Montgomery County Sheriff’s Department. (Respondent’s Exhibit 12)

46. In response to Question 31 on the Personal History Statement Form F-3 (Respondent’s

7 Exhibit 12) which states, "List all jobs you have held in the last ten years. Put your present or most recent job first. If you need more space, you may attach additional sheets. Include military service in proper time sequence and temporary part-time jobs”. Petitioner did list his employment with Quik Chek from November 1989 through February 1990.

47. In Response to Question 31 Petitioner indicated that the reason he left Quik Chek was because he was falsely accused of stealing. (Respondent’s Exhibit 12)

I hereby certify that each and every statement made on this form is true and complete and understand that any misstatement or omission of information will subject me to disqualification or dismissal.

49. On or about July 16, 2008, Petitioner received from the Respondent a Proposed Suspension of Law Enforcement Officer Certification, dated July 11, 2008, for knowingly making material misrepresentations of any information required for certification. (Respondent’s Exhibit 14)

50. The proposed suspension was based upon Petitioner’s alleged material misrepresentation in that Petitioner failed to list a criminal contempt conviction on the Report of Appointment Form F-5A he completed on or about June 5, 2007, as a part of his application with the Marshville Police Department. (Respondent’s Exhibit 14)

51. The proposed suspension was based upon Petitioner’s alleged material misrepresentation, in that Petitioner failed to list that he was discharged or requested to resign his employment with Quik Chek due to an allegation of stealing, in response to question number 26 on the Personal History Statement Form F-3 that he completed on or about December 18, 1995, as a part of his application with the Badin Police Department. (Respondent’s Exhibit 14)

52. The proposed suspension was based upon Petitioner’s alleged material misrepresentation in that Petitioner failed to list his employment with Quik Chek in response to question number 31 on the Personal History Statement Form F-3 that he completed on or about December 18, 1995, as a part of his application with the Badin Police Department. (Respondent’s Exhibit 14)

53. The proposed suspension was based upon Petitioner’s alleged material misrepresentation in that Petitioner failed to list that he was discharged or requested to resign his employment with Quik Chek due to an allegation of stealing in response to question number 26 on the Personal History Statement Form F-3 that he completed on or about

8 December 30, 1998, as a part of his application with the Lilly Protection Company Police. (Respondent’s Exhibit 14)

54. The proposed suspension was based upon Petitioner’s material misrepresentation in that Petitioner failed to list his employment with Quik Chek in response to question number 31 on the Personal History Statement Form F-3 that he completed on or about December 30, 1998, as a part of his application with the Lilly Protection Company Police. (Respondent’s Exhibit 14)

55. The proposed suspension was based upon Petitioner’s material misrepresentation in that Petitioner failed to list that he was asked to resign his employment with Biscoe Police Department, that he was dismissed from the Badin Police Department, and that he was asked to resign from the Norwood Police Department in response to question number 26 on the Personal History Statement Form F-3 that he completed on or about June 5, 2007, as a part of his application with the Marshville Police Department. (Respondent’s Exhibit 14)

56. By letter dated July 21, 2008, Petitioner requested an administrative hearing. (Respondent’s Exhibit 13)

57. On November 17, 2008, Respondent received Plaintiff’s Response to the First Set of Requests for Admissions, Interrogatories and Requests for Production of Documents which were verified by Petitioner on November 13, 2008. (Respondent’s Exhibit 15)

58. Petitioner admitted that he received a PJC in the Show Cause for Failure to Appear After Being Subpoenaed. Petitioner also admitted that he was employed by Quik Chek from November 1989 through February 1990. Petitioner admitted that he left employment with Quik Chek due to an allegation of stealing. (Respondent’s Exhibit 15, p 2, Discovery Admissions)

59. Petitioner admitted that he did not list his employment with Quik Chek on the Personal History Statements he completed as a part of his applications with the Badin Police Department and Lilly Protection Company Police. Petitioner also admitted that he did not disclose on the Personal History Statement for Lilly Protection Company Police that he left Quik Chek due to an allegation of stealing. (Respondent’s Exhibit 15, p 3, Discovery Admissions)

60. Petitioner testified on October 23, 2009, that he worked at Quik Chek from November 1990 and that he left employment with Quik Chek because he was falsely accused of stealing. Shortly thereafter, Quik Chek initiated criminal charges against Petitioner that were subsequently dismissed.

61. Petitioner further testified that in November 1992 he applied for a position with the Montgomery Sherriff’s Office and that he listed his employment with Quik Chek in Form

9 F-3 of that application. (See Respondent’s Exhibit 12, p.6)

62. In July 1993, Petitioner received an expunction for the Quik Chek charge. (See Petitioner’s Exhibit 5). Petitioner further testified that it was his understanding based on the expunction proceeding that he never had to list the Quik Chek matter again.

63. Petitioner admitted that he did not indicate on the Personal History Statement that he completed as a part of his application with the Marshville Police Department that he was dismissed from the Badin Police Department and was asked to resign from the Norwood Police Department. (Respondent’s Exhibit 15, p 4)

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 the 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.

2. The North Carolina Criminal Justice Education and Training Standards Commission has the authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9A, to certify law enforcement officers and to revoke, suspend, or deny such certification.

3. A preponderance of the evidence exists to support the conclusion that Petitioner was issued General Certification by the Respondent on July 11, 2007, and is currently certified.

4. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly made a material misrepresentation of information required for certification when he failed to list a criminal contempt conviction on the Report of Appointment Form F-5A he completed on or about June 5, 2007, as a part of his application with the Marshville Police Department.

5. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly made a material misrepresentation of information required for certification when he failed to list that he was discharged or requested to resign his employment with Quik Chek due to an allegation of stealing in response to question number 26 on the Personal History Statement Form F-3 that he completed on or about December 18, 1995, as a part of his application with the Badin Police Department.

10 6. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly made a material misrepresentation of information required for certification when he failed to list his employment with Quik Chek in response to question number 31 on the Personal History Statement Form F-3 that he completed on or about December 18, 1995 as a part of his application with the Badin Police Department.

7. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly made a material misrepresentation of information required for certification when he failed to list that he was discharged or requested to resign his employment with Quik Chek due to an allegation of stealing in response to question number 26 on the Personal History Statement Form F-3 that he completed on or about December 30, 1998, as a part of his application with the Lilly Protection Company Police.

8. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly made a material misrepresentation of information required for certification when he failed to list his employment with Quik Chek in response to question number 31 on the Personal History Statement Form F-3 that he completed on or about December 30, 1998, as a part of his application with the Lilly Protection Company Police.

9. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly made a material misrepresentation of information required for certification when he failed to list that he was asked to resign his employment with Biscoe Police Department, that he was dismissed from the Badin Police Department, and that he was asked to resign from the Norwood Police Department in response to question number 26 on the Personal History Statement Form F-3 that he completed on or about June 5, 2007, as a part of his application with the Marshville Police Department.

10. The Respondent may properly suspend Petitioner’s certification pursuant to 12 NCAC 9A.0204(b)(6) for material misrepresentations. Pursuant to 12 NCAC 9A .0205(b)(4), the period of sanction shall be not less than five (5) years for material misrepresentation of any information required for certification.

11. The actions of Respondent are constitutional; within the statutory authority of the agency; made upon lawful procedure; not affected by error of law; supported by substantial evidence; and are not arbitrary, capricious, or an abuse of discretion.

12. The findings of the Probable Cause Committee of the Respondent are supported by substantial evidence and are not arbitrary and capricious.

13. The party with the burden of proof in a contested case must establish the facts required by G.S. § 150B-23(a) by a preponderance of the evidence. N.C. Gen. Stat. § 150B-29(a). The administrative law judge shall decide the case based upon the preponderance of the evidence. N.C. Gen. Stat. § 150B-34(a).

11 14. Petitioner has the burden of proof in the case at bar. (See Overcash v. N.C. Dep’t of Env’t & Natural Res., 179 N.C. App. 697, 704, 635 S.E.2d 442, 444, rev denied 361 N.C. 220, 642 S.E.2d 445 (2007)). Petitioner has failed to meet this burden. Petitioner has failed to show by a preponderance of the evidence that Respondent’s proposed suspension of Petitioner’s law enforcement officer certification is not supported by substantial evidence. Petitioner has failed to show that he did not knowingly make material misrepresentations of any information required for certification.

15. Respondent has shown by a preponderance of the evidence that Petitioner knowingly made material misrepresentations of information required for certification. Respondent’s proposed suspension of Petitioner’s law enforcement officer certification is supported by a preponderance of the evidence.

DECISION

In rendering this decision, the undersigned has attached significant deference to the demonstrated remorse of the Petitioner at the hearing of this matter. Further consideration was given to his lack of good judgment in following the sometimes poor advice of his superiors in filling out various applications and histories and accepting their opinions. However, great credence was given to the testimony of Chief Gaddy and his desire to see that this man should continue in law enforcement.

NOW, THEREFORE, based upon the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW, the undersigned Administrative Law Judge recommends that Respondent suspend the Petitioner’s law enforcement officer certification for a period of not less than five (5) years, based upon Petitioner’s material misrepresentations of information required for certification. The undersigned further recommends that the period of suspension be suspended so that Petitioner may continue to work.

NOTICE AND ORDER

The North Carolina Criminal Justice Education and Training Standards Commission is the agency that will make the Final Decision in this contested case. As the final decision-maker, that agency 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 pursuant to N.C. Gen. Stat. § 150B-40(e).

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance with N. C. Gen. Stat. § 150B-36(b).

ORDERED this the 22nd day of January, 2010.

J. Randall May Administrative Law Judge