STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF HENDERSON 11 DOJ 11631

KEVIN JOHN KING, ) ) Petitioner, ) ) v. ) PROPOSAL FOR DECISION ) NORTH CAROLINA SHERIFFS’ ) EDUCATION AND TRAINING ) STANDARDS COMMISSION, ) ) Respondent. ) ______)

On February 1, 2012, this case was heard by the Honorable Donald W. Overby, Administrative Law Judge, pursuant to a designation under Article 3A, Chapter 150B of the North Carolina General Statutes.

APPEARANCES

Petitioner: Pro se.

Respondent: William P. Hart, Jr., Assistant Attorney General

ISSUES

Did Respondent properly propose to revoke Petitioner’s justice officer certification based upon his commission of a Class B misdemeanor offense after the date of his initial certification?

Did Respondent properly propose to revoke Petitioner’s justice officer certification based upon his failure to maintain the minimum standards required of justice officers in that he lacks good moral character?

Did Respondent properly propose to revoke Petitioner’s justice officer certification based upon his failure to timely notify Respondent of a domestic violence protective order issued against him?

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 witnesses, any interest, 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 the Office of Administrative Hearings, in that jurisdiction and venue are proper. Both parties properly received notice of hearing.

2. The North Carolina Sheriffs’ Education and Training Standards Commission (hereinafter referred to as “the Commission”) has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10B, to certify justice officers and to deny, revoke, or suspend such certification.

3. Petitioner received by certified mail the Notification of Probable Cause to Revoke Justice Officer Certification letter, mailed by Respondent Sheriffs’ Commission on or about June 20, 2011. (Resp. Ex. 2) The Notification contends that Petitioner’s certification should be revoked based upon the following:

a. A violation of 12 NCAC 10B .0204(d)(1) by commission of a Class B misdemeanor of hit and run by “unlawfully and willfully” backing his vehicle and striking another without stopping to provide required information; b. A violation of 12 NCAC 10B .0301(a)(8) by lacking good moral character by committing the Class B misdemeanor hit and run and by committing a Class A misdemeanor of criminal domestic violence; c. A violation of 12 NCAC 10B .0204(b)(2) in that by lacking good moral character, he failed to meet or maintain employment or certification requirements.

4. By stipulation of counsel for Respondent, there were insufficient grounds to warrant revocation of Petitioner’s justice office certification on the basis of Petitioner’s failure to notify the Commission as alleged in the third issue set forth above. Accordingly, the undersigned resolves this issue in favor of Petitioner. The undersigned finds as stipulated by counsel for Respondent that Petitioner never failed to notify the Sheriffs’ Standards Division of any domestic violence order.

5. The facts asserted as substantiating the issues presented in this case are the same or substantially similar to those which were presented before the District Court, Buncombe County, in Susan King v. Kevin King (09 CV 01997), wherein Susan King filed a complaint and motion for domestic violence protective order against the defendant Kevin King, who is the petitioner in the instant case. Petitioner was afforded an opportunity to appear and contest the issues litigated in King v. King and is therefore collaterally estopped from re-litigating any

2 questions of fact or law decided upon in the September 17, 2009 Domestic Violence Order of Protection (along with the addendum dated October 9, 2009) filed by the district court judge in that matter (hereinafter referred to collectively as “the DVOP”). (Resp. Ex. 4, pp 5-9)

6. On April 3, 2009, Petitioner and his estranged wife Susan King traveled together in Petitioner’s pickup truck to Greenville, S.C. While there, they spent some time at a night club and both consumed some amount of alcohol. In the early morning hours of April 4, 2009, Petitioner and Ms. King walked together to the parking garage where Petitioner had parked his vehicle.

7. Before they reached the vehicle, Petitioner and Ms. King began to engage in an argument. During the course of this argument, Petitioner used physical force against Ms. King more than once, grabbing her wrists and arms to knock her to the ground and pin her there, and pulling at her arms in an attempt to force her to move toward Petitioner’s vehicle.

8. The District Court Judge presiding over the trial of this matter had an opportunity to observe the witnesses, observe the demeanor of the witnesses, determine any interest, bias, or prejudice the witnesses may have, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case, and in an overall manner judge the credibility of each witness.

9. The District Court Judge presiding made very specific findings of credibility, finding that Petitioner herein was not credible in his testimony. The Judge did find that Petitioner’s wife was credible, as was the testimony of James Godfrey, a private security guard who was first on the scene, and Corporal Ross of the Greenville, S. C. Police Department.

10. Those facts found to be true by the District Court Judge concerning the acts of domestic violence by Petitioner are hereby adopted by reference as though fully set forth.

11. Petitioner’s testimony in this contested case hearing concerning the acts of domestic violence was likewise not credible.

12. After leaving the parking garage where the confrontation with his wife took place and driving a few blocks away from the scene, Petitioner was apprehended by local law enforcement. He was charged with the misdemeanor offenses of Hit and Run - Information/Aid (South Carolina Code 1976, section 56-5-1230) and Criminal Domestic Violence (South Carolina Code 1976, section 16-25-20). There is no evidence that Petitioner was charged with any alcohol related offense. Petitioner subsequently admitted his guilt for the offense of Criminal Domestic Violence as part of an arrangement to have the conviction ultimately dismissed.

13. The DVOP includes a finding that Petitioner struck Godfrey’s vehicle with his own truck while backing up. There is no finding by the Judge of willfulness, knowledge or intent to hit the car—merely that it was struck.

14. S.C. Code § 56-5-1230 requires a driver involved in an accident in which there is property damage to stop at the scene and give proper information. The Code provision does not

3 specifically articulate an element of “knowledge” although it is common sense that one must have some knowledge of the event in order to stop. If “knowledge” became an issue, then that would be an issue for the trier of fact to determine.

15. The DVOP and further evidence before the undersigned establish that Petitioner did not “give his name, address and the registration number of the vehicle he [was] driving” or provide any other relevant information under S.C. Code §56-5-1230 to Godfrey before leaving the scene.

16. Petitioner has steadfastly denied hitting Godfrey’s vehicle with his truck. His father testified that he observed no damage at all on Petitioner’s truck when he went with his son to retrieve the truck from Greenville, S. C.

17. N. C. Gen Stat. § 20-166(c) likewise requires a driver involved in an accident involving property damage to stop and give the required information. The North Carolina statute does have the specific language that the driver either “knows or reasonably should know” that he or she has been involved in an accident.

18. The Notification sent to Petitioner requires that he “unlawfully and willfully” committed the hit and run.

19. It is further found in that Order that Petitioner tried to lift the barrier arm to exit the parking garage area, which is corroborative of Petitioner’s version of how he was leaving the parking area.

20. Petitioner’s statements to the Greenville Police Department and to the Sheriffs’ Standards Division, along with his testimony at the hearing before the undersigned, contain a number of inconsistencies which call into doubt his level of candor during the related investigations and proceedings.

21. The fact that Petitioner was a certified justice officer as of April 4, 2009, and even identified himself as such to Godfrey, is a significant factor for determining whether he lacks good moral character. When Petitioner left the parking garage, he had, or should have had, a reasonable belief that local law enforcement would be arriving at the scene. Petitioner’s actions in leaving the scene with a substantial likelihood that police were coming and while carrying certification as a law enforcement officer cannot be excused.

CONCLUSIONS OF LAW

1. The parties are properly before the undersigned, and the jurisdiction and venue are proper. 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 contain Findings of Fact, they should be so considered without regard to the given labels.

2. The undersigned takes official notice of the South Carolina statutes and relevant

4 portion of the 2011 Class B Misdemeanor Manual admitted together as Respondent’s Exhibit 3. The undersigned takes further notice of all relevant and applicable rules for the Commission as contained in Title 12, Chapter 10B of the North Carolina Administrative Code.

3. 12 NCAC 10B .0204(b)(2) states that the Sheriffs’ Commission shall revoke the certification of a justice officer when the Commission finds that the certified officer:

(b)(2) fails to meet or maintain any of the employment or certification standards required by 12 NCAC 10B .0300.

4. 12 NCAC 10B .0301 sets forth the minimum standards for justice officers. 12 NCAC 10B .0301(a)(8) requires that every justice officer employed or certified in North Carolina shall be of good moral character as defined in: In re Willis, 299 N.C. 1, 215 S.E.2d 771, appeal dismissed, 423 U.S. 976 (1975); State v. Harris, 216 N.C. 746, 6 S.E. 854 (1940); In re Legg, 325 N.C. 658, 386 S.E.2d 174 (1989); In re Applicants for Licensure, 143 N.C. 1, 55 S.E. 635 (1906); In re Dillingham, 188 N.C. 162, 124 S.E. 130 (1924); State v. Benbow, 309 N.C. 538, 308 S.E.2d 647 (1983); and their progeny.

5. 12 NCAC 10B.0204(d)(2) states that the Commission may deny certification as a justice officer when the Commission finds that the applicant has committed or been convicted of:

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

6. The North Carolina Sheriffs’ 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 10B, to certify justice officers and to deny, revoke or suspend such certification.

7. Much of Respondent’s contentions and post hearing arguments and submissions are based on speculation and conjecture, based upon facts not in evidence, based upon witnesses not present in the courtroom and based on evidence not tested by examination and cross- examination.

8. The notification sent to Petitioner dated June 20, 2011 asserts as ground for revoking his certification a violation of 12 NCAC 10B .0204(d)(1) in that he committed a “Class B misdemeanor offense of ‘Hit and Run – Information/Aid’ in violation of South Carolina Code Section 56-05-1230, when you unlawfully and willfully did back up your vehicle, . . and strike the right front fender” of Godfrey’s vehicle. (Emphasis added) The “willfulness” refers to the striking of the other vehicle; otherwise there is nothing unlawful about merely backing a vehicle.

9. The phrase “unlawfully and willfully” is not used in the South Carolina Code. Assuming the requirement of “willfulness” is an implied element of the South Carolina offense, which would be a reasonable assumption, there has been no showing that Petitioner willfully struck Godfrey’s vehicle. There was likewise no such finding in the Order from the District Court Judge who presided at the domestic violence hearing.

5 10. The comparable North Carolina statute requires “knowledge.” There is no evidence of knowledge on the part of Petitioner that he either knew or should have known that he struck Godfrey’s car.

11. The North Carolina Class B Misdemeanor Manual; 2011 Comprehensive Edition, would preclude this event of hit and run from consideration even if there had been sufficient evidence presented to substantiate the allegation of hit and run.

12. Under the section Class B Misdemeanor Definition, subsection (b) it states:

Class B Misdemeanor also includes any act committed or omitted in violation of any common law duly enacted ordinance, criminal statute, or criminal traffic code of any jurisdiction other than North Carolina. . . . Specifically excluded from this grouping of “Class B Misdemeanor” criminal offense for jurisdiction other than North Carolina, are motor vehicles or traffic offenses designated as being misdemeanors under the laws of other jurisdictions with the following exceptions: Class B Misdemeanor does expressly include, either first or subsequent offenses of driving while impaired, . . and driving while license permanently revoked. (Emphasis added)

13. The second section of this definitional section very clearly excludes “motor vehicle and traffic offenses” with those very few limited exceptions when the offense is in a jurisdiction other than North Carolina.

14. The North Carolina Class B Misdemeanor Manual states that the Class B misdemeanors are those that the Commission views as the most serious and “incompatible with membership in the criminal justice officer profession.” Class A misdemeanors are serious and would be considered by the Commission but do not rise to the level of Class B misdemeanors. It is inconceivable that the Commission would intend that a hit and run with property damage would be a more serious criminal offense than domestic violence assault with injuries, which is in keeping with the interpretation of the plain language in paragraphs 12 and 13 above.

15. Petitioner has successfully rebutted the Respondent’s contention that he committed a class B misdemeanor by “unlawfully and willfully” committing the offense of hit and run in South Carolina.

16. The notification sent to Petitioner dated June 20, 2011 asserts as ground for revoking his certification a violation of 12 NCAC 10B .0301(a)(8) in that lacked good moral character in that he committed a Class B misdemeanor offense of Hit and Run and he committed a Class A misdemeanor of “Criminal Domestic Violence.”

17. As to the assertion that Petitioner lacked good moral character based upon the hit and run, as stated above the Petitioner has successfully rebutted the contention that he unlawfully and willfully or with knowledge or intent committed the offense of hit and run as alleged.;

6 however, a preponderance of the evidence exists to conclude that Petitioner committed acts of domestic violence on his estranged wife on April 4, 2009.

18. Under the circumstances of this case, the actions of Petitioner support a conclusion that he lacked the good moral character required of law enforcement officers.

19. A preponderance of the evidence exists to conclude the Petitioner is in violation of Rule 12 NCAC 10B .0301(a)(8) and 12 NCAC 10B .0204(b)(2). The Respondent may properly revoke Petitioner’s certification as a justice officer.

20. Pursuant to 12 NCAC 10B .0205(3)(b), the sanction for a violation of 12 NCAC 10B .0204(b)(2) is revocation for an indefinite period, continuing for so long as the stated deficiency exists. As held in In re Dillingham, 188 NC 162, 124 S.E.130 (1924), when one seeks to establish a restoration of a character, the question becomes one of “time and growth”. The Petitioner demonstrated a lack of good character through his actions on April 4, 2009. Petitioner has presented no evidence tending to show his good moral character has been restored since that date.

21. Petitioner’s statements to the Greenville Police Department and to the Sheriffs’ Standards Division, along with his testimony at the hearing before the undersigned, contain a number of inconsistencies which call into doubt his level of candor during the related investigations and proceedings. The finding that he lacks credibility at this hearing goes to his moral character.

22. Petitioner is not subject to any additional sanction for a failure to notify under 12 NCAC 10B .0301(a)(7) and 12 NCAC 10B .0205(2)(e) by stipulation of the parties.

PROPOSAL FOR DECISION

Based upon the foregoing findings of fact and conclusions of law, it is hereby proposed that Respondent revoke the Petitioner’s justice officer certification for an indefinite period for Petitioner’s lack of good moral character.

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.

This the 28th day of February, 2012.

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7 Donald W. Overby Administrative Law Judge

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