State of North Carolina s51

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE 07 DOJ 1330

SCOTT MCLEAN HARRISON, ) Petitioner, ) ) v. ) DECISION ) NORTH CAROLINA 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 Joe L. Webster heard this contested case in Raleigh, North Carolina on April 30, 2008.

APPEARANCES

Petitioner: R. Daniel Boyce Boyce & Isley, PLLC Post Office Box 1990 Raleigh, North Carolina 27602-1990

Kurt D. Schmidt Thomas & Farris, P.A. Post Office Box 2848 Wilson, North Carolina 27894-2848

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

J. Joy Strickland, 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 failure to comply with the standard for continued certification as a law enforcement officer in that the certified officer has been convicted of a criminal offense or unlawful act as defined in 12 NCAC 09A .0103 as a Class B Misdemeanor supported by a preponderance of the evidence?

RULES AT ISSUE 12 NCAC 09A .0204(b)(3)(A) 12 NCAC 09A .0205(b)(1)

BASED UPON careful consideration of 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.

FINDINGS OF FACT

28856. 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 2, 2007.

28857. 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.

28858. 12 NCAC 09A .0204(b)(3)(A) 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 committed or been convicted of a criminal offense or unlawful act defined in 12 NCAC 9A .0103 as a Class B misdemeanor.

28859. 12 NCAC 09A .0205(b)(1) 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 commission or conviction of a criminal offense other than those listed in Paragraph (a) of this Rule.

28860. At the outset of the hearing, Petitioner stipulated that Respondent’s Exhibits 1 through 8 would be admitted into evidence. Oral arguments only were presented to the Administrative Law Judge.

28861. Petitioner was issued General Certification by the Respondent on March 15, 2002 and is currently certified but not employed in a law enforcement capacity. (Respondent’s Exhibit 1)

28862. By letter dated May 5, 2007, Petitioner notified Respondent that he had been served with a Show Cause Order “alleging criminal contempt, a Class B misdemeanor”. (Respondent’s Exhibit 2)

28863. By letter dated June 18, 2007, Petitioner notified Respondent that he “agreed to accept a negotiated consent order finding that I was in contempt of court for demonstrating gross or reckless indifference to public justice.” (Respondent’s Exhibit 3)

28864. A certified copy of the Show Cause Order and the Stipulations of Findings of Fact and Conclusions of Law was introduced as Respondent's Exhibit 4. District Court Judge Gary S. Cash ordered in the Stipulations of Findings of Fact and Conclusions of Law that Petitioner “is found guilty beyond a reasonable doubt for contemptuous conduct in violation of N.C. Gen. Stat. § 5A-11(a)(7).” (Respondent’s Exhibit 4) Petitioner was found guilty on June 15, 2007.

28865. Criminal Contempt, in violation of N.C. Gen. Stat. § 5A-11, is a Class B Misdemeanor as defined in 12 NCAC 9A .0103(23) and the Class B Misdemeanor Manual as published by the North Carolina Department of Justice. (Respondent's Exhibit 5)

28866. Petitioner received from the Respondent a Proposed Suspension of Law Enforcement Officer Certification, dated July 2, 2007, for his failure to comply with the standard for continued certification as a law enforcement officer as set forth in 12 NCAC 09A . 0204(b)(3)(A) which states that the Commission may suspend or revoke the certification of a criminal justice officer when the Commission finds that the certified officer has been convicted of a criminal offense or unlawful act as defined in 12 NCAC 09A .0103 as a Class B Misdemeanor.

28867. Pursuant to his plea agreement and as a result of his misconduct, Petitioner made a written apology to District Court Judge Kristin Ruth and the Wake County District Court System for any delays caused in the resolution of his cases. (Respondent’s Exhibit 7)

28868. Petitioner responded to Admissions and Interrogatories submitted to him by Respondent. (Respondent’s Exhibit 8) Petitioner’s responses to Admissions Number 18 and Number 19 are inconsistent with the Stipulations of Findings of Facts and Conclusions of Law (Respondent’s Exhibit 4) entered into by Petitioner as a part of his plea agreement. In the Stipulations, Petitioner admitted in paragraph 3 that he went to Courtroom 9B and remained there even though he had been earlier advised that his cases had been transferred to Courtroom 5A and after being directed by Assistant District Attorney Waller that his cases were pending in Courtroom 5A. In Admissions Number 18, Petitioner stated he went from Courtroom 5A to 9B to check on the status of his cases scheduled that day. In Admissions Number 19, Petitioner stated he waited for an opportunity to talk with the assistant district attorney in 9B so that he could discuss the cases and subpoenas he received. Based upon the Stipulations, Petitioner was aware his cases were no longer in 9B and he was notified by the assistant district attorney that his cases had been transferred to 5A.

28869. At the hearing of this matter, Petitioner argued the allegations set out in his Motion for Summary Judgment, which had previously been denied. Petitioner again argued that he should have been offered a lesser sanction rather than a five (5) year suspension of his law enforcement officer certification.

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

28870. 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.

28871. 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.

28872. Pursuant to 12 NCAC 09A .0204(b)(3)(A) 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 committed or been convicted of a criminal offense or unlawful act defined in 12 NCAC 9A .0103 as a Class B misdemeanor.

28873. Pursuant to 12 NCAC 09A .0205(b)(1) 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 commission or conviction of a criminal offense other than those listed in Paragraph (a) of this Rule.

28874. Pursuant to 12 NCAC 09A .0103(23)(b) "Class B Misdemeanor" means an act committed or omitted in violation of any common law, criminal statute, or criminal traffic code of this state that is classified as a Class B Misdemeanor as set forth in the Class B Misdemeanor Manual as published by the North Carolina Department of Justice. 28875. Pursuant to the Class B Misdemeanor Manual, as published by the North Carolina Department of Justice, Criminal Contempt in violation of N.C. Gen. Stat. § 5A-11 is a Class B Misdemeanor.

28876. Pursuant to 12 NCAC 9A .0103(5)(b), "Convicted" or "Conviction" means and includes, for purposes of this Chapter, the entry of a verdict or finding of guilt by a jury, judge, magistrate, or other adjudicating body, tribunal, or official, either civilian or military.

28877. A preponderance of the evidence exists to support the conclusion that Petitioner was issued General Certification by the Respondent on March 15, 2002 and is currently certified.

28878. A preponderance of the evidence exists to support the conclusion that Petitioner was found guilty beyond a reasonable doubt for contemptuous conduct in violation of N.C. Gen. Stat.§ 5A-11(a)(7) on June 15, 2007 in that Petitioner demonstrated a grossly negligent failure to comply with schedules and practices of the Court resulting in substantial interference with the business of the Court.

28879. A preponderance of the evidence exists to support the conclusion that Criminal Contempt in violation of N.C. Gen. Stat. § 5A-11 is a Class B Misdemeanor as defined in 12 NCAC 9A .0103(23) and the Class B Misdemeanor Manual as published by the North Carolina Department of Justice.

28880. The Respondent may properly suspend Petitioner’s certification pursuant to 12 NCAC 9A .0204(b)(3)(A) for the conviction of a criminal offense or unlawful act defined in 12 NCAC 09A .0103 as a Class B Misdemeanor. Pursuant to 12 NCAC 9A .0205(b)(1), the period of sanction shall be not less than five (5) years for the conviction of a Class B Misdemeanor.

28881. The undersigned finds that Petitioner’s argument that he should have been offered a lesser sanction is unfounded. 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.

28882. The findings of the Probable Cause Committee of the Respondent are supported by substantial evidence and are not arbitrary and capricious.

28883. 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).

28884. Petitioner has the burden of proof in the case at bar. Petitioner, a certified officer, has failed to show that he was not convicted of a criminal offense or unlawful act defined in 12 NCAC 9A .0103 as a Class B misdemeanor.

28885. Respondent has shown by a preponderance of the evidence that Petitioner, a certified officer, was convicted of a criminal offense or unlawful act defined in 12 NCAC 9A . 0103 as a Class B misdemeanor. Respondent’s proposed suspension of Petitioner’s law enforcement officer certification is supported by substantial evidence.

DECISION

NOW, THEREFORE, based upon the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW, the undersigned Administrative Law Judge recommends Respondent suspend the Petitioner’s law enforcement officer certification for a period of not less than two (2) year based upon Petitioner’s conviction of the Class B misdemeanor offense of “Criminal Contempt”, in violation of 12 NCAC 9A .0204(b)(3)(A). This period of suspension should be stayed for a period of three years on the condition that Petitioner undergoes a mental health examination by a licensed psychiatrist in private practice and follow any recommendations, if any for treatment within 30 days of this judgment. It is also recommended that Petitioner be placed in an administrative non-road position for such period of time as deemed appropriate for the State Highway Patrol and that he undertake 75 hours of community service under Wake County Community Service Office. It is also recommended that Petitioner be given credit for any community service he has completed and any other efforts he has undertaken and completed to comply with the Order of The Honorable Gary S. Cash dated June 15, 2007. Upon Petitioner’s successful completion of the requirements as herein set forth in this Judgment, the suspension shall be vacated.

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 Findings of Fact and to present oral and written arguments to the Agency. N.C. Gen. Stat. §150B-40(e).

The Agency that will make the Final Decision in this contested case is the North Carolina Criminal Justice Education and Training Standards Commission.

IT IS SO ORDERED.

This the 24th day of June, 2008.

______Joe L. Webster Administrative Law Judge