State of North Carolina s93

STATE OF NORTH CAROLINA IN THE OFICE OF ADMINISTRATIVE HEARINGS COUNTY OF PITT 02 DOJ 0484

JEROME MARTRICE JOHNSON ) Petitioner ) ) vs. ) PROPOSAL FOR DECISION ) N.C. CRIMINAL JUSTICE ) EDUCATION AND TRAINING ) STANDARDS COMMISSION )

THIS MATTER was heard before the undersigned Administrative Law Judge, Augustus B. Elkins II on July 18, 2002 in Halifax, North Carolina.

APPEARANCES

Petitioner: Jerome M. Johnson, Pro Se 1703 John Brown Court Greenville, North Carolina 27834-0245

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

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

RULES AT ISSUE

12 NCAC 9A .0204(b)(3)(A) 12 NCAC 9A.0103 12 NCAC 9A.0204(b)(2) 12 NCAC 9B.0101(3)

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 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. From official documents in the file, sworn testimony of the witnesses, and other competent and admissible evidence, it is found as a fact that:

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 Suspension of Law Enforcement Officer Certification letter mailed by Respondent on February 19, 2002.

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

3. Petitioner was issued probationary certification (PRA 243370133) by the Respondent effective November 12, 1996 and general certification (GNA 243370133) by the Respondent effective November 12, 1997 to serve as a criminal justice officer.

4. 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.

5. 12 NCAC 9B .0101(3) provides that every criminal justice officer employed by an agency in North Carolina shall be of good moral character.

6. On or about October 4, 2001, Petitioner was arrested for the criminal offense of Misdemeanor Larceny, which occurred on or about September 24, 2001, when Petitioner unlawfully and willfully did steal, take and carry away an Audiovox AM/FM radio with compact disc player, belonging to Service Drug Company, having a value of eighty-nine dollars and ninety five cents ($89.95).

7. The criminal offense of Misdemeanor Larceny, where the value of property or goods is not more than one thousand dollars ($1000.00), is a violation of N.C.G.S. 14-72(a) and constitutes a Class B Misdemeanor pursuant to 12 NCAC 09A.0103 of the Commission’s Administrative Rules. Adjudicated Facts

8. On September 24, 2001 at approximately 10:10 p.m., Petitioner and Officer Tommy Lymon, both of the Pinetops Police Department, responded to an alarm call at the Service Drug Store. Upon arrival at the drug store, the officers found the front doors unlocked but did not discover anyone inside the store. Officer Lymon radioed Dispatcher Wanda Joyner and requested that she contact the drug store key holder and ask that individual to come and reset the alarm and lock the doors.

9. While awaiting the arrival of the drug store key holder, Petitioner and Officer Lymon noticed and discussed a car compact disc player that was on a shelf in the store. Officer Lymon observed Petitioner go towards the back of the store with the CD player but at the time did not believe he would leave with it. Petitioner then exited through the back door and left the CD player behind the drug store.

10. Dispatcher Wanda Joyner was at the Pinetops Police Department, across the street from the Service drug store. She observed Petitioner exit from the back door of the drug store with an item in his hand, lay it down and return back into the store.

11. After the drug store key holder arrived and reset the alarm, Officer Lymon and Petitioner left the store. Approximately twenty minutes later, the officers returned to the store and Petitioner retrieved the CD player from behind the store. Petitioner took the CD player back to the police department and placed it in his personal vehicle.

12. Dispatcher Joyner informed Officer Lymon that she saw Petitioner exit the back door of the drug store with something in his hand. Officer Lymon spoke with Petitioner on the telephone and told Petitioner that he needed to return the CD player because someone saw him take it out of the back door of the drug store. Officer Lymon believed Petitioner would tell the Chief what had happened and “put an end to it.”

13. Chief J.M. Sasser of the Pinetops Police Department received a telephone call from Petitioner at approximately 7:00 a.m. on September 26, 2001. Petitioner was not scheduled to work, yet told Chief Sasser that he wanted to speak with him regarding comments made by a dispatcher.

14. Petitioner arrived at the police department and informed Chief Sasser that comments made by Dispatcher Wanda Joyner regarding an item taken from the Service Drug Store were unfounded. Petitioner stated emphatically that he did not take anything from the drug store. Chief Sasser then contacted Dispatcher Joyner and asked her to come to his office. Petitioner again stated that he had not taken anything from the drug store and Dispatcher Joyner apologized to Petitioner for wrongly accusing him.

15. On September 27, 2001 at approximately 8:00 a.m., Chief Sasser spoke with Officer Lymon regarding the incident at the Service Drug Store. Officer Lymon informed Chief Sasser that Petitioner had taken a CD player from the drug store and Dispatcher Wanda Joyner was correct in what she saw. Officer Lymon submitted a written statement to Chief Sasser. 16. At approximately 5:00 p.m. on September 27, 2001, Chief Sasser contacted Petitioner at his home and advised him to think about the situation at the drug store and to bring anything to the police department that may belong to the drug store. Petitioner came to the police department at approximately 6:45 p.m. and admitted to Chief Sasser that he took a CD player from the Service Drug Store during an alarm call. Petitioner then removed the CD player from the trunk of his personal vehicle and placed it in Chief Sasser’s patrol vehicle.

17. On October 1, 2001, Petitioner provided a detailed explanation to Chief Sasser as to what occurred at the drug store. Petitioner submitted a written statement and was suspended without pay until the conclusion of the departmental investigation.

18. On October 4, 2001, Chief Sasser informed Petitioner that charges would be filed against him. Furthermore, Chief Sasser gave Petitioner a letter of termination. This followed a three-day suspension without pay, which had been enacted on October 1, 2001.

19. Petitioner was served with an arrest warrant for Misdemeanor Larceny on October 4, 2001. He appeared in court and entered into a deferred prosecution agreement on November 14, 2001. In this agreement, Petitioner admitted to the larceny. The State agreed to dismiss charges upon Petitioner’s surrender of his law enforcement certification for six months, payment of restitution, and submission of letters of apology.

20. Petitioner’s job as a law enforcement officer was very important to him and he had substantially changed his life style to be in law enforcement. Petitioner does not steal and regretted getting caught up in the action at the drug store. Petitioner teaches his children not to steal. In fact, Petitioner’s children were in the hearing by direction of the Petitioner to witness what happens when you steal. The Undersigned was impressed by this action and the sincerity of Petitioner in his remorse.

21. Chief Sasser believed Petitioner’s actions were not like him. The Chief at all other times had found Petitioner to be dependable and reliable. Officer Lymon knew Petitioner had never done anything like this before and he was shocked. Officer Lymon knows Petitioner to be a devoted family man and an “A-1 Officer.” Officer Lymon always felt safe with the Petitioner as his partner.

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. Both parties are properly before this Administrative Law Judge in that jurisdiction is proper and both parties received notice of hearing.

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 9, to certify law enforcement officers and to deny, revoke, or suspend such certification.

3. There is sufficient evidence that Petitioner committed the Class B misdemeanor of larceny, in violation of the Commission’s rules, by unlawfully and willfully stealing, taking, and carrying away a compact disc player that was property of the Service Drug Company of Pinetops, North Carolina. Further, the Petitioner’s conduct of committing the larceny of a CD player from the Service Drug Company while on duty and his conduct of being dishonest about the larceny and allowing Dispatcher Joyner to apologize for wrongly accusing him constitutes prima facie evidence of a lack of good moral character.

4. The Commission has sufficient grounds under 12 NCAC 9A .0204 (b)(3)(A) and 12 NCAC 9A.0103 to suspend Petitioner’s criminal justice officer certification for the misdemeanor larceny act. 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 an individual has committed a criminal offense or unlawful act.

5. 12 NCAC 9B .0101(3) provides that every criminal justice officer employed by an agency in North Carolina shall be of good moral character pursuant to G.S. 17C-10. N.C.G.S. 17C-10 states the Commission shall fix other qualifications for retention of criminal justice officers including good moral character.

6. Though Petitioner’s actions establishing prima facie evidence of the lack of moral character are present they do not rise to the level of acts of “baseness, vileness or depravity in private and social duties,” that define moral turpitude. Further, Petitioner’s mistakes were inter- related by a single situation of lack of judgment, and were by all accounts out of character for him and an isolated event. This is not that conscious, aggregate of moral qualities, which belong to and distinguish Petitioner as an individual person. Without a review of Petitioner’s entire record, the Undersigned and quite frankly the Respondent are unable to declare in the face of the evidence at hearing that the one instance of misdemeanor larceny defines the aggregate of Petitioner’s ethical qualities and thus define the individual Petitioner as one who lacks moral character as those terms are practically and legally defined. The evidence at hearing in fact shows otherwise. There is not therefore sufficient grounds at this time under 12 NCAC 9A .0204 (b)(2), and 12 NCAC 9B .0101(3) to suspend Petitioner’s criminal justice officer certification for lack of moral character.

BASED UPON the foregoing Findings of Fact and Conclusions of Law the Undersigned makes the following:

PROPOSAL FOR DECISION

Respondent had and has just cause to suspend Petitioner’s certification as a law enforcement officer under 12 NCAC 9A .0204 (b)(3)(A) and 12 NCAC 9A.0103 and actually by Agreement and Order to Defer Prosecution, Petitioner surrendered his law enforcement certification to Respondent for a period of six months beginning approximately November 14, 2001 which suspension continues per February 19, 2002 letter from Respondent. When the Commission suspends 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 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 12 NCAC 09A .0205. The Respondent Commission should explore all avenues for consideration of exercising its discretion of either reducing or suspending Petitioner’s period of sanction or substitute a period of probation in lieu of continued suspension. This can be done in light of a review of Petitioner’s entire record, cost of training to become a law enforcement officer and other factors as determined relevant by the Respondent.

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. 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.

A copy of the final agency decision or order shall be served upon each party personally or by certified mail addressed to the party at the latest address given by the party to the agency and a copy shall be furnished to his or her attorney of record. N.C.G.S. § 150B-42(a). It is requested that the agency furnish a copy to the Office of Administrative Hearings.

This the 23rd day of September, 2002.

______Augustus B. Elkins II Administrative Law Judge