STATE OF NORTH CAROLINA IN THE OFFICE OF COUNTY OF ANSON ADMINISTRATIVE HEARINGS 01 DOJ 0500

MARCUS O. CLARK ) Petitioner, ) ) v. ) ) PROPOSAL FOR DECISION N.C. SHERIFF’S EDUCATION ) AND TRAINING STANDARDS ) COMMISSION ) Respondent. )

THIS MATTER came on for hearing before the undersigned Administrative Law Judge by request of the Respondent pursuant to N.C.G.S. §150B-40(e) for the designation of an Administrative Law Judge to preside at the hearing of a contested case under Article 3, Chapter 150B of the North Carolina General Statutes. The case was heard by the undersigned Administrative Law Judge on July 27, 2001:

APPEARANCES

Petitioner: Marcus Clark Pro Se

Respondent: Brian L. Blankenship Assistant Attorney General

ISSUE

Is the proposed suspension of the Petitioner’s certification with the Sheriff’s Training and Education Standards Commission supported by substantial evidence?

FINDINGS OF FACT

(Stipulated Facts)

1. Both parties are properly before this Administrative Law Judge in that jurisdiction and venue are proper, both parties received notice of hearing, and the Petitioner received the Notification of Probable Cause to Revoke Certification letter mailed by the Respondent on February 22, 2001.

2. 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 10, to certify justice officers and to revoke, suspend, or deny such certification. 3. On November 16, 1989, Petitioner was charged in Anson County with a Class A Misdemeanor offense of Driving While Impaired, which was voluntarily dismissed due to lack of evidence.

4. On January 26, 1991, Petitioner was served by an officer of the Anson County Sheriff’s Office with a WARRANT FOR ARREST for the offense of Non-Support of Spouse or Children in violation of N.C.G.S. § 14-322, which was dismissed by the District Attorney on or about May 20, 1991.

5. On October 14, 1993, the Petitioner completed a Personal History Statement (Form F-3) as part of his application to the Respondent for certification as a detention officer with the Anson County Sheriff’s Office. On the Form F-3, question number forty-seven (47) asked, “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?” The Petitioner responded to this question by answering “No”.

6. On March 3, 1995, the Petitioner completed a second Form F-3 as part of his application to the respondent for certification as a justice officer with the Anson County Sheriff’s Office. As stipulated earlier, question number forty-seven (47) on this form asked, “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?” The Petitioner responded to this question by answering “No.”

7. On February 15, 1996, Petitioner, through the North Carolina Department of Correction, filed a Report of Appointment/Application for Certification (Form F-5A(CJP)) with the North Carolina Criminal Justice Education and Training Standards Commission. Under the Criminal Offense Record Section of this form, the Petitioner listed the following information: “DWI, 11-16-89, Dismissed by DA on 3-13-90. Following Too Closely, 11-16-89, Convicted 3- 13-90.”

8. On October 5, 1997, Petitioner, through the Morven Police Department, filed a Report of Appointment/Application for Certification (Form F-5A(LE)) with the North Carolina Criminal Justice Education and Training Standards Commission. Under the Criminal Record Section of this form, Petitioner listed the following information: “Careless & Reckless Driving, Wadesboro, N.C., 11-16-89, VD 3-13-90.”

9. On December 15, 1999, the Petitioner completed a Personal History Statement (Form F-3) as part of his application to the Respondent for certification as a detention officer with the Mecklenburg County Sheriff’s Office. On the Form F-3, question number forty-seven (47) asked, “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?” The Petitioner responded to this question by answering “No.”

10. On September 27, 2000, an ORDER OF EXPUNCTION of Mr. Marcus Clark’s arrest for Non-Support of Children and subsequent dismissal of the charge by the District Attorney was granted.

11. The provisions found in the North Carolina Administrative Code at 12 NCAC 10B .0204(c)(1) and (2) provide:

(3) The Commission may revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant for certification or certified justice officer:

(1) has knowingly made a material misrepresentation of any information required for certification or accreditation from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission; or

(2) has knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation, or cheating whatsoever, obtained or attempted to obtain credit, training, or certification from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission.

Adjudicated Facts

12. Mr. Ted Sauls, Deputy Director of the Respondent Commission, testified that in April 2000, he received an application from Petitioner for a position with the Mecklenburg County Sheriff’s Department. Mr. Sauls testified that Petitioner did not list any criminal charges or convictions on the Personal History Statement he submitted to the Mecklenburg County Sheriff’s Department. Mr. Sauls testified that additional documents were submitted with Petitioner’s application which disclosed criminal charges not listed on Petitioner’s Personal History Statement. Mr. Sauls testified that, upon receipt of this information, he reviewed the Sheriff’s Commission and Criminal Justice Commission files containing information about Petitioner’s previous certification with both agencies.

13. The Personal History Statement completed by the Petitioner contains an attestation clause above the Petitioner’s signature which reads, “I hereby certify that each and every statement made on this form is true and complete and understand that any misstatements or omissions of information may subject me to disqualification or dismissal.” Directly above Question #47 on each of the Personal History Statements, is a note which reads, in pertinent part, “If any doubt exists in your mind as to whether or not you were arrested or charged with a criminal offense at some point in your life or whether an offense remains on your record, you should answer ‘Yes.’ You should answer ‘No’, only if you have never been arrested or charged, or your record has been expunged by a judge’s court order.”

14. The Petitioner testified that he read the Personal History Statement prior to completing and signing the statement.

15. The Petitioner testified that he answered “no” in response to question 47 on the Personal History Statement submitted to Anson County in 1993 because, “[t]he DWI charge, of course, was dismissed by the D.A. because of lack of evidence. . .And at the time my knowledge of the law, I misunderstood the question.”

16. The Petitioner testified that he answered “no” in response to question 47 on the Personal History Statement he submitted to the Anson County Sheriff’s Department in March 1995 for the same reasons he answered “no” to question 47 on his 1993 Personal History Statement to the Anson County Sheriff’s Department.

17. The Petitioner testified that he answered “yes” in response to question 47 on the Personal History Statement submitted to the North Carolina Department of Corrections, Anson Correction Center in February 1996 because, “I had learned a little bit more by working with the previous appointment in Anson County that, of course, the question would come up . . .”

18. On the February 1996 Personal History Statement, the Petitioner correctly listed the 1989 DWI offense and disposition.

19. The Petitioner testified that he did not list the offense of Non-Support of Spouse or Children because, “ I didn’t understand that it was a criminal charge.” “I just thought it was civil.”

20. The Petitioner testified that he did not list the 1989 DWI charge on the Report of Appointment/Application for Certification he submitted to the Morven Police Department in October 1997 because, “the DWI charge was voluntarily dismissed by the DA.” Petitioner testified, however, that the careless and reckless driving charge that he listed referred to the DWI charge in 1989.

21. The Petitioner testified that he answered “no” in response to question 47 on the Personal History Statement that he submitted to Mecklenburg County Sheriff’s Department in December 1999 because, “I didn’t have the information before me when I placed the applications. I didn’t want to be incorrect not putting - not actually placing the correct dates and times of these charges . . .”

22. Mr. Sauls testified that Petitioner’s case was presented to the Sheriff’s Commission Probable Cause committee. The Probable Cause committee found that probable cause existed to believe that there Petitioner has knowingly and materially misrepresented material facts on his applications for certification.

CONCLUSIONS OF LAW

1. The parties are properly before the undersigned Administrative Law Judge and jurisdiction and venue are proper.

2. Petitioner’s omission of the charge for Driving While Under the Influence in 1989 from his 1993, 1995 and 1999 Personal History Statements and 1997 Report of Appointment/Application for certification and his omission of arrest for Non-Support of Spouse or Children in 1991 from his Personal History Statements and 1996 and 1997 Report of Appointment/Application for Certification constitutes a knowing material misrepresentation of information required for certification as a justice officer.

3. Petitioner’s omission of his complete criminal history record from the Personal History Statements and Reports of Appointment/Applications for Certification is in violation of 12 NCAC 10B .0204(c)(1) and (2).

4. Respondent’s proposed suspension of Petitioner’s certification as a justice officer is supported by substantial evidence.

5. Pursuant to 12 NCAC 10B .0205, Respondent, in its discretion, may lessen or reduce a period of sanction subsequent to an administrative hearing based on material misrepresentation.

PROPOSAL FOR DECISION

WHEREFORE, based on the foregoing Findings of Fact and Conclusions of Law, the undersigned Administrative Law Judge recommends that the Petitioner’s application for certification as a justice officer be suspended based on his knowing material misrepresentation of his criminal history record information from his Personal History Statements and Reports of Appointment/Applications for Certification. The Respondent should exercise any discretion it deems appropriate in lessening or reducing the period of sanction.

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 Finding of Fact and to present oral and written arguments to the agency. NCGS §150B-40(e).

This is the 10 th day of October, 2001.

______Beecher Gray Administrative Law Judge