On August 15, 2005, Administrative Law Judge Beryl E

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE 04-DOJ-2256

RICHARD MICHAEL ASHLEY, ) Petitioner, ) ) v. ) DECISION ) NORTH CAROLINA CRIMINAL ) JUSTICE EDUCATION AND ) TRAINING STANDARDS ) COMMISSION, ) Respondent. )

On August 15, 2005, Administrative Law Judge Beryl E. Wade heard this case in Raleigh, North Carolina. This case was heard after Respondent requested, pursuant to N.C. Gen. Stat. § 150B-40(e), the designation of an Administrative Law Judge to preside at the hearing of a contested case under Article 3A, Chapter 150B of the North Carolina General Statutes.

APPEARANCES

Petitioner: R. Daniel Boyce, Esq. Attorney for Petitioner Post Office Box 1990 Raleigh, North Carolina 27602-1990

Respondent: Lorrin Freeman, Esq. Assistant Attorney General Department of Justice Law Enforcement Liaison Section 9001 Mail Service Center Raleigh, North Carolina 27699-9001

1. Did the Respondent prove by a preponderance of the evidence that the Petitioner is lacking in good moral character as required for certification as a law enforcement officer by the North Carolina Criminal Justice Education and Training Standards Commission in violation of Criminal Justice Rule 12 NCAC 9A .0204(b)(2) and 12 NCAC 9B .0101(3)?

FINDINGS OF FACT

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

1 received by certified mail the Proposed Suspension of Law Enforcement Officer certification letter mailed by Respondent on November 9, 2004. (Respondent’s Exhibit 1).

2. The North Carolina Criminal Justice Education and Training Standards Commission (hereafter referred to as 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 criminal justice officers and to deny, revoke or suspend such certification.

3. Pursuant to Criminal Justice Commission Rule 12 NCAC 9A .0204(b)(2) and 12 NCAC 9B .0101(3), “[t]he 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:

(2) fails to meet or maintain one or more of the minimum employment standards required by 12 NCAC 9B .0100 for the category of the officer’s certification…, to wit: 12 NCAC 9B . 0101(3), which requires that every criminal justice officer employed by an agency in North Carolina shall be of good moral character pursuant to G.S. 17C-10...”

4. A hearing was held on August 15, 2005. Various officers of the North Carolina Highway Patrol (hereinafter “Highway Patrol”) testified on behalf of the Respondent. No officials of the North Carolina Department of Motor Vehicles (hereinafter “NCDMV”) testified. The Petitioner (hereinafter “Officer Ashley”) testified. Three (3) character witnesses testified on behalf of the Petitioner. Based on the testimony and other evidence presented at the hearing, the Court finds as fact the information set forth below.

5. Officer Ashley began his law enforcement career in 1993 when he was employed with the Hertford County Sheriff’s Department. Officer Ashley left the Hertford County Sheriff’s Department in 1995 to work for the Ahoskie Police Department. In 1998, Mr. Ashley accepted a job with the North Carolina Department of Motor Vehicles (“NCDMV”). He worked with NCDMV through December, 2003. NCDMV Enforcement merged with the North Carolina Highway Patrol (“Highway Patrol”) in January, 2003.

6. Officer Ashley was with the Highway Patrol until May, 2004 when he was dismissed because of the allegations in this matter.

7. Officer Ashley married his wife in December, 1998. They have one son, now six (6) years old. Officer Ashley and his wife separated in April, 2002. Officer Ashley sent a proposed draft settlement agreement which stated the date of separation was April 12, 2002. Negotiations continued for some time thereafter. The divorce was final in October, 2004.

8. The allegations against Officer Ashley emerged in October, 2002. Mr. Ashley’s estranged wife filed a complaint with NCDMV. NCDMV investigated the allegations and found no substantial cause to warrant discipline.

2 9. Officer Ashley’s estranged wife filed another complaint with Highway Patrol in May, 2003. The focus of the new complaint from the estranged wife again was Officer Ashley’s relationship with another woman. Officer Ashley has always admitted his relationship with the woman and testified that he still is in a monogamous relationship with her as of the date of the hearing.

10. Officer Ashley was repeatedly interviewed by Officers of the Highway Patrol.

11. During at least one of the interviews, Officer Ashley was advised he did not have the right to counsel and he had to answer the questions honestly. Accordingly, Officer Ashley truthfully responded to the questions about his relationship with his girlfriend.

12. During the course of the investigation by Highway Patrol investigators, the only evidence regarding any improper conduct was based on the interview of the Petitioner, Officer Ashley. During several interviews, Officer Ashley admitted having a single isolated sexual encounter in or about May, 2002, during lunch at a Halifax County, North Carolina Weigh Station during an 8:00 a.m. to 5:00 p.m. shift. The weigh station was closed and not open to the public.

13. Officer Ashley told the investigating officers and admitted at the hearing that during the summer of 2002, he was contacted by his girlfriend and asked if she could join him for lunch. He agreed and they met at the weigh station. While on his lunch break, Officer Ashley did not in any way put his job or any individual in jeopardy; and there was no evidence that there was any other dereliction of duties during the lunch.

14. Officer Ashley believed he was legally separated from his ex wife at the time of the incident under North Carolina Law (N.C. Gen. Stat. Section 50-6, and Bruce v. Bruce, 79 NC App. 579, 339 S.E. 2d 855, cert. denied 317.NC 701, 347 S.E. 2d 36 (1986).

15. Officer Ashley admitted he was on duty that day, but contends that pursuant to the N.C. State Personnel Manual, meal period is defined as follows:

“Meal Period Defined: The meal period may be scheduled within the normal work hours to meet the needs of the employee and the working unit but may not be used to shorten the workday. A bona fide meal period is a span of at least 30 consecutive minutes during which an employee is completely relieved of duty. It is not counted as hours worked.”

16. The incident was only a brief, spontaneous encounter between two people in love (and still in love) that only lasted a matter of minutes during Officer Ashley’s lunch break. It was an act between two consenting adults behind closed doors with no other individuals involved.

17. No one would have known about the incident except for Officer Ashley’s admission.

3 18. Officer Ashley has shown an exemplary law enforcement history both prior to and subsequent to the incident with no other specific allegation of wrongful conduct.

19. The relationship was investigated by NCDMV (before merger with the Highway Patrol) and Officer Ashley’s employer (NCDMV) took no action against Officer Ashley.

20. No evidence was introduced that the allegations have anything to do with the performance as a law enforcement officer and does not have anything to do with the commission of a crime of moral turpitude or an act affecting his reputation for honesty and truthfulness.

21. When other similar incidents have occurred, those cases were handled within the Department. The officers were not terminated (only disciplined) and the Criminal Justice Standards Division did not intervene to review a law enforcement officer’s licensure status.

22. The Petitioner was on duty and in uniform on state property and executed poor judgment by engaging in a sexual act.

23. The incident involved an act between two consenting adults.

24. No other incidents of misconduct were presented.

25. The Petitioner was truthful and honest when asked about the incident and in fact, no other information or evidence was available to the investigating officers.

26. The Petitioner presented evidence of good character and truthfulness by both former and current co-employees and supervisors.

27. The good moral character and truthfulness of the Petitioner has existed both prior to and subsequent to the incident.

28. There were no allegations of a felony or misdemeanor and no charges were ever brought against Officer Ashley.

CONCLUSIONS OF LAW

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

2. Pursuant to Criminal Justice Commission Rule 12 NCAC 9A .0204(b)(2) and 12 NCAC 9B .0101(3),, “[t]he 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:

fails to meet or maintain one or more of the minimum employment standards required by 12 NCAC 9B .0100 for the category of the officer’s certification…, to wit: 12 NCAC 9B .0101(3), which requires that every criminal

4 justice officer employed by an agency in North Carolina shall be of good moral character pursuant to G.S. 17C- 10...”

3. Based on the evidence presented by both parties, the Respondent has shown by a preponderance of the evidence that Petitioner failed to maintain the minimum requirements to be a law enforcement officer in that he was involved in a sexual encounter while on duty in uniform and at his work place and that this act demonstrated a lack of the good moral character that is required of all law enforcement

4. The Court further finds as a matter of law that the mitigating factors outweigh the aggravating factors.

PROPOSAL FOR DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends Respondent Criminal Justice Commission suspend Petitioner Richard Michael Ashley’s law enforcement certification for a period of six (6) months; that the suspension be suspended; and that the Petitioner Richard Michael Ashley be placed on probation for a period of six (6) months. As a condition of probation, the Petitioner Richard Michael Ashley shall not violate any federal or state laws or any law enforcement rules or regulations.

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 addresses to the party at the latest address given by the party to the agency and a copy shall be furnished to any attorney of record. N.C.G.S. § 150B-42(a). In accordance with N.C. Gen. Stat. § 150B-36(b), the agency shall serve a copy of the Final Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina, 27699-6714.

This the 17th day of October, 2005.

______Beryl E. Wade Administrative Law Judge