State of North Carolina s68

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF CALDWELL 02 DOJ 0170

JOSEPH GARTH KELLER, ) Petitioner, ) ) v. ) DECISION ) N.C. CRIMINAL JUSTICE ) EDUCATION AND TRAINING ) STANDARDS COMMISSION, ) Respondent. )

THIS MATTER was heard before the undersigned Administrative Law Judge on June 4, 2002, in Newton, North Carolina.

APPEARANCES

Petitioner: Jeffrey P. Gray Holt York McDarris & High, LLP Attorney for Petitioner 4601 Six Forks Road, Suite 207 Raleigh, North Carolina 27609

Respondent: Amy L. Yonowitz, Assistant Attorney General Attorney for Respondent N.C. Department of Justice Post Office Box 629 Raleigh, North Carolina 27602

Whether the Respondent has just cause to suspend Petitioner’s certification as a correctional officer.

RULES AT ISSUE

12 NCAC 9G .0102(10)(g) 12 NCAC 9G .0102(10)(t) 12 NCAC 9G .0206 12 NCAC 9G .0504(b)(2) 12 NCAC 9G .0504(b)(3) STIPULATED FACTS

1. That both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, that both parties received notice of hearing, that Petitioner received the Proposed Suspension of Correctional Officer Certification letter mailed by Respondent on November 19, 2001.

2. That the Petitioner’s notification of Proposed Suspension of Correctional Officer Certification was marked as Joint Exhibit 1 and admitted into evidence.

3. That the Respondent N.C. Criminal Justice Education and Training Standards Commission has the authority granted under Chapter 17C of the North Carolina General Statutes in Title 12 of the North Carolina Administrative Code, Subchapter 9, to certify criminal justice officers and to deny, revoke or suspend such certification.

4. That 12 NCAC 9G .0504(b)(3) provides that the Respondent may suspend, revoke or deny the certification of a corrections officer when the Commission finds:

That the applicant for certification or the certified officer has committed or been convicted of a misdemeanor as defined in 12 NCAC 9G .0102 after certification.

5. That Petitioner was issued probationary certification (PRB – 246023303) by the Respondent effective December 7, 1998, and general certification (GNB – 246023303) effective December 7, 1999, to serve as a full-time correctional officer with the Department of Correction.

6. That Petitioner was arrested September 26, 1999, for the criminal offense of Assault on a Female by Male Over Eighteen, which allegedly occurred on or about September 26, 1999, when Petitioner allegedly assaulted Dorothy Keller by twisting her arm and shoving her.

7. That the criminal offense of Assault on a Female, in violation of N.C.G.S. § 14- 33(c)(2), constitutes a misdemeanor pursuant to 12 NCAC 9G .0102(10)(g) of the Respondent’s Administrative Rules.

8. That the criminal offense of Willful and Wanton Injury to Personal Property in excess of $200, in violation of N.C.G.S. § 14-160(b), constitutes a misdemeanor pursuant to 12 NCAC 9G .0102(10)(t) of the Respondent’s Administrative Rules.

FINDINGS OF FACT

1. That Dorothy Keller, wife of Petitioner Joseph Garth Keller, testified as to the events that occurred on the evening of September 25, 1999. Mrs. Keller testified that her husband and her, and another couple, had gone out to dinner and to various bars and nightclubs in Hickory, North Carolina. The other couple was driving their car and the

2 two couples were riding together. At the last stop for the evening, a country music bar, Mrs. Keller testified that she got tired of her husband being “mouthy” so she left the bar. She did not tell her husband or anyone else that she was leaving and she went to her mother’s house. She stated that she got a ride home with a Hickory police officer. She thought her husband had keys to their house.

2. That at approximately 3:00 a.m. on September 26, 1999, she talked with her husband on the telephone and he was very upset. He had left two messages on her mother’s answering machine cursing and wanting to know if she was there. In their telephone conversation, he told her she would not like what she saw when she got home. She agreed to come home and her husband and a friend, Patsy McCray, came to her mother’s house and picked her up.

3. That her husband was calm when he got to her mother’s house and that she was not concerned or afraid about going home with him.

4. That when they arrived at their home, she discovered that her 1993 Honda EX automobile had been damaged by the Petitioner. Photographs of the damaged car were admitted into evidence.

5. That Mrs. Keller testified that she owned the Honda automobile prior to their marriage and the automobile was insured on a joint policy with another automobile. The insurance company paid for all of the damage and the Petitioner reimbursed the insurance company.

6. That later in the morning, Mrs. Keller’s mother and some men arrived with pickup trucks to move Mrs. Keller out of the marital home. An argument ensued and the Petitioner told Mrs. Keller that he was not going to allow her to take property out of the house unless the police were present. She reached for the cordless telephone and the Petitioner and she began “wrestling” over the phone. He had his hands on the phone and she had her hands on the phone, and both trying to pull the phone out of the other’s hands. Mrs. Keller demonstrated for the Administrative Law Judge that she had the telephone above her head and the Petitioner shoved her. She fell over into the bar and bruised her thigh. Mrs. Keller repeatedly characterized the confrontation with her husband as “wrestling” over the telephone and stated that he did not slap, hit, choke or otherwise harm her.

7. That Mrs. Keller and her mother called the police using a cellular telephone, and later that morning the Petitioner was arrested for Assault on a Female and placed in custody pursuant to the Domestic Violence Protection Act.

8. That Mrs. Keller testified that her husband had never been abusive to her before September 26, 1999, but that on one occasion they got into a disagreement over money and he tore a twenty dollar bill in half and threw it at her and on another occasion he got mad and threw an ashtray at the wall. On no prior occasion had the Petitioner slapped, hit, choked or otherwise tried to cause harm to her.

3 9. That Mrs. Keller sought and received an ex parte Domestic Violence Protective Order which described the Petitioner’s conduct as “shoving Plaintiff and damaging her glasses.” The Order also described the damage to her car.

10. That both Mrs. Keller and the Petitioner sought the services of an attorney and the parties entered into an agreement entitled “Domestic Violence Protective Order” which, among other things, provided for the dismissal of the Assault on a Female charge.

11. That the assault on a female charge against the Petitioner was dismissed.

12. That Mrs. Keller testified that she did not think that the Petitioner deserved to lose his correctional officer certification over this incident.

13. That Dorothy Keller’s mother, Elizabeth Ann Cole, testified and corroborated her daughter’s testimony. She described the Petitioner’s demeanor when he arrived at her house to pick her daughter up on the morning of September 26, 1999, as being “like usual.” Mrs. Cole personally observed the Petitioner and her daughter’s attempts to gain control of the cordless telephone. She described what occurred as her daughter being “pulled into the bar” and did not characterize the Petitioner’s conduct as shoving her. She also testified that the Petitioner did not slap, hit, choke or otherwise cause harm to her daughter.

14. That Richard Squires, the investigator for the Respondent Commission, testified that he investigated this matter. He testified that he contacted Dorothy Keller, as well as her mother, Elizabeth Ann Cole, and obtained statements from them. He also obtained copies of the Incident/Investigative Report of this incident from the Caldwell County Sheriff’s Department, as well as the citation charging the Petitioner with Assault on a Female and the dismissal by the Sheriff’s Department of the Assault on a Female charge. Mr. Squires also conducted a telephone interview of the deputy who investigated this matter. By memorandum dated August 24, 2001, Mr. Squires provided the Standard Committee of the Respondent Commission with the results of his investigation.

15. That Mr. Squires did not recommend to the Standards Committee a finding of a commission of the offense of Willful and Wanton Injury to Personal Property in Excess of $200. Mr. Squires only addressed the issue of the commission of the offense of Assault on a Female and a violation of the Respondent Commission’s Administrative Rules regarding a lack of good moral character. The Standards Committee independently found probable cause to support a finding of a violation of 12 NCAC 9G .0102(10)(t) of the Respondent Commission’s Administrative Rules.

16. That Mr. Squires did not interview the Petitioner or request a statement from him as part of his investigation.

4 17. That Scott Perry, Director of the Criminal Standards Division, which is responsible for administrating the programs of the Respondent Commission, testified as to the Petitioner’s dates of probationary and general certification. He further testified as to the notification of Proposed Suspension of Correctional Officer Certification which was admitted as Joint Exhibit 1.

18. That Mr. Perry also testified that he was the custodian of records for the Respondent Commission and records of a similar case regarding the suspension of the correctional officer certification of Travis Lee Thomas at the Respondent Commission’s Standards Committee’s February 14, 2002, meeting. The minutes of the Standards Committee meeting, the investigative report by Mr. Squires, and supporting documents were admitted into evidence and made a part of the record in this administrative hearing. In this matter, Mr. Thomas had been charged with Assault on a Female as well as three counts of Injury to Personal Property. All charges against Mr. Thomas had been dismissed and the Standards Committee found no probable cause.

19. That the Petitioner Joseph Garth Keller testified that he had been employed by the Department of Correction since December, 1998. He was first employed in the Custody Division of the Western Youth Correctional Center and approximately two years ago, transferred to the Food Services Division. He is married to Dorothy Keller and they are currently separated. At the time of the incident in question, September 26, 1999, he and Mrs. Keller had been married for fourteen (14) months, having dated for a period of four (4) months prior to marriage.

20. That the Petitioner testified as to the events that occurred on the evening of September 25, 1999, wherein his wife and he joined another couple for a night of dinner and visiting various bars and night clubs in the Hickory area. At their last stop for the night, they went to a country music bar. Very shortly after they arrived he could not find his wife. He had last seen her headed toward the dance floor with a friend and was unable to locate her after that point. He began searching the bar for her. While he was searching the bar, the couple which they had ridden with that evening decided that they wanted to go home. The Petitioner told them that he would find a ride. He then continued to search for his wife.

21. That the Petitioner was at first concerned for the safety of his wife, and then became suspicious that she had left with another man. He went into the restaurant area of the bar where he found his friend, Patsy McCray, who first helped him search for his wife, then gave him a ride home. On the way to his house, he attempted on two (2) occasions to find his wife by calling her mother’s home and leaving messages on the answering machine. He testified that he was beginning to get upset when he could not locate her. When he arrived home his wife was not there and he did not have keys to the house. He could not get in his home. At that point, he became very upset and smashed the window out of her car; he then smashed the sun roof and windshield of the car.

5 22. That at approximately 3:00 a.m., the Petitioner’s wife called him on Ms. McCray’s cell phone and told him that she was at her mother’s house and was okay. The Petitioner calmed down and told his wife that she would not like what she saw when she got home and his wife told him to come pick her up. Ms. McCray drove the Petitioner to his mother-in-law’s house to pick up his wife.

23. That Ms. McCray gave Dorothy Keller and the Petitioner a ride back to their home. When they arrived home, and Mrs. Keller saw the damage to her car, she told the Petitioner to not worry about it, insurance would pay for it, and everything would be alright.

24. That at approximately 10:00 a.m. on the morning of September 26, 1999, the Petitioner was awakened when his mother-in-law arrived at his house accompanied by two (2) men driving pickup trucks. The Petitioner was informed that his wife was moving out of the house and an argument ensued. The Petitioner informed his wife that it was his house and that she was not moving anything out of it unless the police were present. His wife reached for the cordless telephone to call for the police and they began wrestling for control of the telephone.

25. That both the Petitioner and his wife had their hands on the telephone pushing and pulling, one trying to take the phone from the other. During this pushing and pulling he shoved his wife causing her to fall against the bar and the phone went flying into the air. His wife then called the Sheriff’s Department using his mother-in-law’s cellular telephone.

26. That when the Deputy Sheriff arrived, the Petitioner explained to the deputy what occurred. The deputy advised him that he would have to arrest him for Assault on a Female. The Petitioner was taken into custody and remained in jail for the statutorily prescribed time.

27. That the Petitioner testified that he did not intend to harm his wife and that her falling against he bar was a direct result of them wrestling over the telephone. The Petitioner testified that he had never harmed his wife in the past and did not mean to on this occasion.

28. That the Petitioner’s wife sought a Domestic Violence Protective Order and that on the advice of counsel, he entered into a separate agreement prepared by his attorney entitled, “Domestic Violence Protective Order,” wherein he agreed to pay for the damages to his wife’s car and she agreed to the dismissal of the Assault on a Female charge. The Petitioner was advised by his attorney that if he entered into the agreement, and the criminal charges were dismissed, that this matter would become a “civil matter” and would have no effect on his correctional officer certification.

29. That the Assault on a Female charge against the Petitioner was dismissed by the District Attorney. The dismissal states that it is with consent of the victim, Dorothy Keller, who did not wish to prosecute.

6 30. That the Petitioner reported this criminal charge to the Department of Correction as required. The Department of Correction investigated this matter and the Petitioner was disciplined by the Department of Correction. He was denied any promotional opportunities for a period of eighteen (18) months as a result of this criminal charge. The Department of Correction reported this incident as required to the Respondent Commission. The Petitioner thought this matter had been concluded until he received the notification of the proposed suspension of his correctional officer certification which had been admitted into evidence as Joint Exhibit 1.

31. That the Petitioner testified that he had never been written-up for any type of violent act or aggressive behavior as a Department of Correction employee. The Petitioner has received very good evaluations and copies of his TAP (“The Appraisal Process”) evaluations for the past three (3) years were admitted into evidence.

32. That the Petitioner enjoys working for the Department of Correction and would like to be a career employee with the Department.

33. That William A. Turvaville testified and corroborated the testimony of Dorothy Keller and the Petitioner, Joseph Garth Keller. Mr. Turvaville testified that his wife and he were the other couple who had gone out with the Petitioner and Dorothy Keller on the night of September 25, 1999. He testified that shortly after arriving at the country music bar, the Petitioner discovered that his wife was missing. He then began to search for her. He stated that the Petitioner was very concerned about his wife. The Petitioner was becoming more upset as he could not locate his wife. The Petitioner stated to Mr. Turvaville that he thought his wife had left the bar with another man. Mr. Turvaville and his wife left the bar after the Petitioner told him that he would find a ride home. He further testified that the Petitioner had been drinking that night but did not appear to be drunk.

34. That the following morning, September 26th, Mr. Turvaville received a telephone call from the Petitioner asking him to come to his house. He stated that there were some men in his yard who he did not know and since he did not have any family in the area, would like somebody to be present at his house. Mr. Turvaville did not go to the Petitioner’s house, but instead, went to the jail to attempt to post his bail after he was arrested for Assault on a Female pursuant to the Domestic Violence Protection Act. Since there was no presiding judge available, the Petitioner had to remain in jail until Monday; Mr. Turvaville was unable to post his bond on September 26th. Mr. Turvaville was not present at the house when Dorothy Keller and the Petitioner were wrestling over control of the telephone.

35. That Mr. Turvaville testified that he had known the Petitioner since he began working at the Department of Correction and that he had never seen him angry or upset, or engage in any type of violent or aggressive behavior. He testified that the Petitioner’s reputation within the Department of Correction was good and that he was known as a peaceable person. He also testified that the Petitioner was trustworthy and his

7 reputation in the community was that he was an honest, trustworthy person and that he was a peaceable person.

36. That Patsy McCray testified and corroborated the testimony of Dorothy Keller and the Petitioner. Ms. McCray testified that shortly after the Kellers and the Turvavilles arrived at the country music bar, Dorothy Keller and she went out on the dance floor to participate in a “line dance.” Shortly thereafter, she went to the restaurant area of the bar to eat breakfast prior to going home. Later on, the Petitioner approached her in the restaurant and asked her if she had seen his wife. She then began to assist the Petitioner in attempting to locate his wife. She stated that the Petitioner was very concerned for the safety of his wife since he did not know where she had gone. After they were unsuccessful in locating her, the Petitioner became more upset and expressed to her his belief that his wife had left the bar with another man.

37. That Ms. McCray offered to give the Petitioner a ride home and on the way home he used her cellular telephone to call his mother-in-law’s house and attempt to determine if she had gone there and was safe. When they arrived at the Petitioner’s house, the Petitioner discovered that his wife was not home and he did not have a key to let himself into the home. The Petitioner then became very upset. While sitting in her car attempting to call Dorothy Keller at her mother’s home, Ms. McCray witnessed the Petitioner smash the window in Mrs. Keller’s car. She thought at first that the Petitioner was attempting to get keys out of the car. She then discovered that he was doing it out of anger. The Petitioner continued to damage his wife’s car. Shortly thereafter, Mrs. Keller called the Petitioner on Ms. McCray’s cellular telephone and told him that she was at her mother’s house and was okay. Ms. McCray testified that upon learning that his wife was safe, the Petitioner immediately calmed down. She then took the Petitioner to his mother-in-law’s house and Dorothy Keller rode back home with Ms. McCray and the Petitioner.

38. That Ms. McCray testified that on the ride home, Dorothy Keller was very remorseful and was rubbing the Petitioner’s shoulders and stroking his hair and telling him that everything would be alright and they would work their marital problems out. After they arrived back at the Keller’s home, Ms. McCray thought that everything was okay between the couple so she left.

39. That Ms. McCray later went down to the jail to take the Petitioner some personal items and saw Dorothy Keller and her mother leaving the jail. She testified that Dorothy Keller did not appear to be injured in any way.

40. That Ms. McCray testified that that she had known the Petitioner for eight to ten (8- 10) years and that she had never known him to be aggressive, violent, or to harm anyone. She said that his reputation in the community was good and that he was a peaceable person.

41. That the Petitioner’s aunt, Maxine Gilbert, testified and stated that she had known the Petitioner since he was a baby. She testified that she had never known him to be

8 violent and that his reputation in the community was that he was a good, honest person and a peaceable person. She said that she was very surprised when she heard about the charge of Assault on a Female.

42. That Garry Peele, Supervisor, Food Services Division, Western Youth Correctional Center, testified that he had directly supervised the Petitioner for the past two (2) years. Mr. Peele is a twenty-five (25) year career employee of the Department of Correction, having served the last six (6) years in his current capacity at Western Youth. Mr. Peele testified that the Petitioner was an exemplary employee and he considered him to be a hard worker and trustworthy. He further testified that he has never seen the Petitioner lose his temper or act in an aggressive manner toward any of the inmates at Western Youth Correctional Center. Mr. Peele particularly noted that youth ranging in ages from sixteen (16) to nineteen (19) years old, were the most difficult inmates to manage within the system. He testified that the Petitioner does an excellent job in working with those inmates assigned to the Food Services Division, and is very professional.

43. That Mr. Peele testified that the Petitioner is eligible for promotion and is a strong candidate for promotion within the Food Services Division. He would like to see him become a career employee.

44. That Mr. Peele testified that the Petitioner’s reputation within the Department of Correction and the Western Youth Correctional Center was very good and that he was considered to be a peaceable person. Mr. Peele does not live in the area, and actually commutes from Yadkinville, North Carolina, so he was not aware of the Petitioner’s reputation in the community.

45. That Billy Boughman, Assistant Supervisor, Western Youth Correctional Center, was supervisor over the Custody Division when the Petitioner was employed as a custody officer, and is supervisor over the Food Services Division where the Petitioner is currently employed. Mr. Boughman has known the Petitioner since his employment with the Department of Correction and considers him to be an exemplary employee. He would like to see him remain as a career Department of Correction employee and believes that he has a future with that Department. Mr. Boughman testified that the Petitioner has a good reputation within the Department of Correction and that he has never known him to engage in any violent or aggressive act toward another person.

CONCLUSIONS OF LAW

1. That there is insufficient evidence that the Petitioner committed the criminal offense of Assault on a Female by Male Over Eighteen by assaulting Dorothy Keller in violation of N.C.G.S. § 14-33(c)(2). Any act by the Petitioner was a consequence of both Dorothy Keller and him attempting to obtain control of a cordless telephone and was unintended.

2. That there is sufficient evidence by the Petitioner’s own admission, that the Petitioner committed the criminal offense of Willful and Wanton Injury to Personal Property by damaging the 1993 Honda automobile which was owned by his wife, Dorothy Keller, in violation of

9 N.C.G.S. § 14-160(b). The insurance company paid for all of the damages to the vehicle and the Petitioner reimbursed the insurance company for the money expended by the insurance company.

3. That there is insufficient evidence under the case law defining conduct which constitutes a lack of good moral character as defined by 12 NCAC 9G .0504(b)(2) and 12 NCAC 9G .0206 to show that the Petitioner does not possess good moral character. There was no evidence presented by the Respondent at the hearing which indicated a pattern of behavior by the Petitioner that would give rise to a finding of a lack of good moral character. The overwhelming evidence presented by Petitioner showed that the Petitioner was a person of good moral character, honest, trustworthy, and peaceable.

Based upon the above Findings of Fact and Conclusions of Law, the undersigned makes the following:

DECISION

It is hereby recommended that the Criminal Justice Education and Training Standards Commission suspend Petitioner’s law enforcement certification for a period of not less than three years pursuant to 12 NCAC 9G .0102(10) (t) and 12 NCAC 9G .0504 (b)(3), for commission of a Class B misdemeanor, to wit: Willful and Wanton Injury to Personal Property. It is further recommended that the Commission exercise its discretion and suspend the suspension of Petitioner’s law enforcement certification for a period of three years, provided that he not violate any Federal or State law, or Rules of the Commission.

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 G.S. 150B-36(b).

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 pursuant to G.S. 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.

This the 30 th day of August, 2002.

______Beecher R. Gray Administrative Law Judge